r 


THE  LIBRARY 

OF 

THE  UNIVERSITY 

OE  CALIFORNIA 

LOS  ANGELES 

SCHOOL  OF  LAW 


/H5 


/ 


A  PRACTICAL  TREATISE 

ON 

ABSTRACTS 

AND 

EXAMINATIONS  OF  TITLE 

TO 

REAL  PROPERTY 


BY 
GEORGE  W.  WARVELLE,  LL.D. 

r  1 1 

Author  of  A  Treatise  on  Vendor  and  Purchaser,  Principles  of  the  Law 
of  Real  Property,  The  Law  of  Fjectment,  etc. 


FOURTH  EDITION 


CHICAf;0 

CALLAGHAN  AND  COMPANY 

1921 


Enterfd  Acc-ording  to  Act  of  Congress,  in  the  year  1883, 

By  georgl:  W.  WARVELLE, 

In  the  Oflioe  of  the   Librarian   of  Congress,  at   Washington. 


Entered  Arcording  to  Act  of  Congress,  in  the  yf*ar  1892. 

By  GEORGE  W.   WARVELLE, 

In  the  Offl.-e  of  the  Librarian  of  Congress,  at  Washington. 


Copyright,  1907, 
r.y   GEORGE  W.   WARVELLE. 


Copyright,  imi. 
By  GEORGE  W.  WARVELLE 


T 


PREFACE  TO  FIRST  EDITION 


I  have  no  apology  to  make  for  the  appearance  of  this  book,  but 
a  word  or  two  of  explanation  may  be  in  order. 

The  subject  which  I  have  here  undertaken  to  elaborate,  is  new 
to  the  legal  literature  of  the  United  States,  although  abstracts  of 
title  have  long  been  employed  by  the  profession  in  all  matters  per- 
taining to  title  of  real  property.  But  with  each  successive  year 
it  has  assumed  vaster  proportions,  and,  as  the  country  continued 
steadily  to  develop,  it  has  gradually  been  shaping  itself  into  a  dis- 
tinct branch  of  legal  science,  that  calls  for  a  high  degree  of  tech- 
nical skill  and  special  learning.  And  this  has  reference  both  to 
convej-ancers  and  lawyers;  the  one  to  properly  and  systematically 
compile,  and  the  other  to  interpret,  the  evidences  of  title  which  go 
to  support  claims  of  ownership  in  land. 

No  American  author  has  heretofore  seen  fit  to  epitomize,  for  the 
special  use  of  conveyancers  and  the  legal  profession,  the  questions 
of  law  which  arise  during  the  perusal  of  an  abstract,  or  to  direct 
the  attention  of  either  class  toward  a  systematic  method  of  pre- 
senting those  questions.  Eminent  writers  on  real  property  have 
passed  the  subject  in  silence,  and  the  few  American  writers  on 
conveyancing  who  have  heretofore  ventured  to  touch  upon  it,  have 
dismissed  it  with  the  fewest  possible  words,  and,  as  a  rule,  what- 
ever remarks  they  may  have  made  were  usually  but  servile  echoes 
of  English  writers. 

Several  works,  of  more  than  ordinary  merit,  have  appeared  in 
England,  in  which  the  subject,  from  an  Engiisli  standpoint,  is 
very  thoroughly  and  ably  discussed,  but  the  irreconcilable  differ- 
ences in  our  laws  and  institutions  have  rendered  them  compara- 
tively worthles-s  to  the  American  practitioner,  and  they  are  rarely 
met  with  on  this  side  of  the  Atlantic.  The  methods  of  Engiisli 
conveyancers  and  solicitors,  wliile  admirably  adaijted  to  the  exi- 
gencies of  their  own  laws  and  customs,  and  highly  conducive  to  the 
end  desired,  are  but  ill  suited  to  our  wants  and  furnish  little  itssist- 
ance  in  tracing  the  devious  courses  <)\'  an  Aiiuricin  title. 

vii 


Vlil  PREFACE  TO  FIRST  EDITION. 

Ill  view,  tliereioix',  oi'  the  t'OnsLantly  increasing  importance  of 
abstracts  of  title,  and  the  present  inadequate  means  of  informa- 
tion concerning  the  same,  I  have  been  prompted  to  write  this  book. 
It  combines,  not  only  the  result  of  my  own  experience,  both  in  the 
preparation  of  abstracts  and  in  passing  titles  therein  presented, 
but  also  the  experience  of  a  number  of  eminent  conveyancers  unci 
lawyers  whom  I  have  freely  consulted  during  its  preparation. 

I  have  endeavored  to  give  a  general  outline  of  M^hat  I  consider 
the  best  methods  of  compiling  the  abstract  so  as  to  insure  the  most 
satisfactory  results ;  a  general  system  for  the  arrangement  of  the 
several  parts  and  formal  divisions;  and  the  latest  approved  plans 
for  presenting  the  essential  matter  of  deeds,  instruments  and  pro- 
ceedings affecting  title  necessary  to  be  shown.  I  have  further  made 
a  few  suggestions  relative  to  laying  out  and  keeping  a  set  of  abstract 
indices,  the  great  utilit}-  of  which  must  be  apparent  without  com- 
ment. To  reduce  the  work  within  the  smallest  allowable  space,  as 
well  as  to  prevent  confusion,  I  have  made  but  few  allusions  to  local 
statutes,  while  the  statements  of  law  have  been  confined  mainly 
to  broad  and  commonly  accepted  doctrines.  It  is  expected  that 
the  careful  practitioner  will  be  fully  posted  on  the  laws  of  his 
own  State  relative  to  descent,  purchase,  etc.,  and  hence  the  rules 
here  given  are  of  general  application  only.  As  this  book  is  intended 
for  the  use  of  conveyancers,  as  well  as  for  the  legal  profession, 
it  has  been  deemed  best,  in  many  instances,  to  elucidate  only  those 
principles  which  are  elementary  in  their  nature,  and  to  avoid  sub- 
tilties  or  extended  discussions. 

Though  this  work  is  entirely  the  result  of  my  own  personal  labor, 
T  am  under  many  obligations  to  gentlemen  of  the  bar  for  advice 
and  suggestion,  and  particularly  would  I  express  my  thanks  to 
S.  M.  Henderson,  Esq.,  and  Messrs.  Haddock,  Vallette  &  Rick(!ords, 
of  Chicago,  for  the  very  valuable  assistance  rendered  in  the  prepa- 
ration of  many  of  the  forms. 

I  trust  that  my  work  may  meet  the  favor  of  the  profession,  and 
be  of  real  utility  and  assistance  to  them ;  that  it  may  serve  to  assist 
in  creating  a  better  understanding  between  conveyancer  and  coun- 
sel, by  acquainting  each  with  the  methods  of  the  other;  and  that 
it  may  be  instrumental  in  building  up  a  symmetrical  system  of 
title  abstracts  in  this  eountrj^. 

G.  W.  W. 

Chicago,  Sept.  1,  1883. 


ANALYSIS  OF  CONTENTS 


CHAPTER  I. 


PREMMINARY    OBSERVATIONS. 
SEC.  PAGE. 

1.     Introductory   1 

purport  of  the  work 1 

Abstracts  defined 1 

Origin    of   abstracts 2 

Essentials  of  the  abstract .'5 

The  English  method ;i 

6.  The  American  method 4 

7.  Abstracts  and   examinations   di.stinguislied 4 

Qualifications   of   the   examiner 5 

Examiner 's  liability  for  error G 

implied  skill  and  knowledge 7 

necessary  conditions  to  fix   liability 8 

10.  Character  of  examiner 's  liability 10 

11.  Duty  of  furnishing  abstract 10 

vendor  to  furnish  when 11 

custody  and  ownership  of .  .  .                                         12 

12.  Taxation  of  abstract   books 12 

13.  Exemption   of   abstract   books i;{ 


CHAPTER  II. 

TITI.K    TO    KEAI,    PKOPEK'n'. 

14.     Property  and  title  distiiiguislu'd 14 

ITi.     A«iuisitiou  of  title 11 

by  descent    11 

by  purchase   ....  M 

other  distinctioii.s  l.T 

16.  Clnnsiilcatiou  of  title !.''> 

Blackstone's  diviaions.  .  .  .  ir> 

American  divixionH l.'i 

bad,   doubtful   and    jxTfoct .  .  .  l.T 

legal   and  equitable.  1(1 

17.  SourccH  of  title If) 

the  King  ...  Id 

the   Stale    .  .  IC. 

ix 


X  ANALYSIS   OP   CONTENTS. 

SEX!.  PAQK. 

IS.     Nature  of  title  iu  the  United  States 17 

all  land  held  in  allodium 17 

submission    to   legislative   control 18 

ID.     Estates  under  allodial  titles 18 

fee   simple    18 

for  life   18 

for  years 18 

possession  and   e.\iH'ctaucy 19 

reversions  and  contingencies 19 

20.  Uses  and  trusts 19 

21.  Powers  20 

22.  Homesteads     21 

23.  Dower  and  curtesy 23 

24.  Terms  of  years 25 

25.  Easements  and  servitudes 26 

26.  Color  of  title 27 

27.  Evidences  of  title 28 

28.  Alienation   and   descent 28 

CHAPTER  III. 

TITLE   BY    DESCENT. 

29.  Nature  of  the  title   30 

;{0.     Rules  of  descent 31 

31.  Consanguinity  32 

methods  of  comjuitation 32 

by  the  coninum  law 32 

by  the  civil  law 33 

table  of  degrees  of  consanguinity 35 

32.  Affinity    33 

3:5.     Adoption    33 

34.  Proof  of  heirship 36 

35.  Proof  of  death 36 

3ti.     Conveyances  by  heirs 36 


CHAPTER  IV. 

TITLE   BY   PURCHASE. 

37.  Nature  of  the  title 38 

methods  of  purchase 38 

38.  Deed  38 

39.  Devise    39 

40.  Public    grant       39 

41.  Estoppel     40 

42.  Technical   estoppel    40 

43.  Equitable  estoppel   42 

44.  Relation   44 

45.  Prescription   and   limitation 45 

46.  Accretion  and   reliction 46 

rules   for   measurement 47 


ANALYSIS   OF    CONTENTS.  XI 

sec;  page. 

47.  Avulsion    48 

48.  Riparian  titles   48 

49.  Dedication     50 

50.  Confirmation   50 

51.  Occupancy  52 

52.  Abandonment    52 

53.  Eminent  domain 54 

54.  Title  acquired  by  eminent  domain 54 

55.  Escheat    56 

56.  Confiscation     57 

57.  Forfeiture    58 


CHAPTER  V. 

SOURCES    Of    INFORMATION. 

58.  Records    59 

defijied    59 

dignity  of 59 

59.  Depositories  of   records 59 

60.  The  right  of  inspection  of  records 60 

60a.  Continued — Later  views   6.H 

61.  Doctrine   of   notice 64 

62.  Constructive  notice   65 

6.3.     Actual  notice   66 

64.  Registration    67 

65.  Effect  of  recording  acts 68 

66.  Loss  or  destruction  of  record 70 

67.  Official  aids  to  search 71 

68.  Grantor  and  grantee  indexes 71 

69.  Notice   lis  pendens    73 

70.  Plaintiff  and  defendant  indexes 73 

71.  Tax   records    "-1 

72.  Official  certificates .74 

72a.  Municipal  records   74 

73.  Church  and  parish  records 74 


CHAl'TKK  VI. 

INDICES    AND    RKFEKKNCE.S. 

74.  Iniportani'c  of  indexes 7ti 

75.  Patent  systems  7»i 

76.  The   government   tract  book...  77 

index  compiled  from 77 

77.  Field  notes  of  government  survivs.  7ft 

UBCH   of   in  abstracting 78 

78.  The  original   entry "9 

method   of   arranging   bookii.  .  70 

illustration  of  sample  page  79 

method   of  compilation 8<i 


Xll  ANALYSIS   OP    CONTENTS. 

SBO.  PAOr,. 

79.  Document  numl)er   index 80 

method  of  compilation 80 

illustration  of  sjunple  page 80 

80.  Long   form   entries 80 

81.  The  tract  index 81 

how   compiled 82 

sample   page    82 

82.  Irregular  index    8.H 

83.  Tax  index   84 

method  of  compilation 84 

sample  page   84 

84.  Judgment  index   85 

sample  page   85 

85.  ■  Decrees  and  sales  in  chancery 85 

86.  Grantees  index   85 

87.  Laying  out  the  books 86 

scale   for  indexing 87 

88.  Besume 87 


CHAPTER  VIT. 

COMPILING  THE  ABSTRACT. 

89.  Generally   considered    88 

90.  The  extent  of  the  search 89 

91.  Making  the  chain 90 

92.  Formal  parts    91 

9.3.     The  caption    91 

for  general  examination 92 

for  assumption  of  title 94 

for   special  examination 95 

for  tax  abstract 95 

94.  Arrangement  of  the  abstract 95 

practical  example  96 

95.  Synopsis  of   instruments 97 

96.  Fullness    of    narration 99 

97.  Instruments  shown   for   reference 100 

98.  Examiners '  notes   100 

99.  Irregular   instruments    101 

100.  Reference  to  original  instruments  and  private  memoranda 101 

101.  Abbreviations   102 

102.  Letter  press  copies lO.'i 

103.  Concluding   certificate    103 

practical  example   104 

CHAPTER  VIII. 

INCEPTION    OF    TITLE. 

104.  Preliminary  stages  of  title 108 

105.  Inceptive  measures  under  the  U.  S.  land  laws 109 


ANALYSIS   OP    CONTENTS.  XI 11 

SEC.  PAOB. 

106.  Disposal  of  the  public  lands 110 

107.  Public   land   sales Ill 

108.  Private  entry  of  lands Ill 

origin   of   term Ill 

entry,  how  made Ill 

109.  Nature  of  the  title  conferred  by  entry 112 

110.  What  lands  subject  to  entry 114 

111.  Pre-emption   entries    114 

112.  Nature   of  pre-emption  right-s 116 

113.  Conveyances  before  entry 117 

114.  Graduation   entries    118 

115.  Donation  entries    119 

116.  Homestead   entries    120 

117.  Eights  acquired  under  homestead   acts 121 

118.  Desert  land  entries 122 

119.  Timber  culture  entries.  . '. 123 

120.  Location  by  military  warrants 123 

121.  Land   scrip    124 

Virginia  military  scrip 124 

Indian  or  half-breed  scrip 124 

private  land   scrip 12.'i 

agricultural  college  scrip 12.5 

122.  Swamp   land   grants 126 

act  of  1849 126 

act  of  1850 126 

123.  School    lands    127 

124.  Internal  improvement  grants 129 

125.  Land  grants  to  railroads 129 

126.  Public  highways    130 

126a.  Private  land  claims 131 

127.  Who  may  acquire  a  title .132 

128.  Inceptive  measures  in  the  abstract 1.".2 


CHAPTER  IX. 

INITI.M.    .ST.VTK.MKNTS. 


129.     The  government  entry 

practical  form   . 
I.'IO.     The  donative  act 

practical    form    

131.  Continued,  section  sixteen 

practical  form  

practic'il   form    for   lieu    liini 

132.  Confirmations    

133.  Town   .site   entrie.s 

act  of  1864 
act  of  186.5 
act  of  1867 

134.  The   receiver's   receipt 


134 
134 
135 
13.5 
136 
136 
137 
137 
139 
139 
139 
1.39 
141 


practical    form  Ul 


Xiv  ANALYSIS   OP    CONTENTS. 

SEC.  PAQF. 

135.  State  lands   - 142 

commissioner 's   receipt    143 

136.  The  root  of  title 144 

CHAPTER  X. 

CONORESSIONAL    ANT)   LEGISLATIVE   GRANTS. 

137.  Legislative  grants  generally  considered - 145 

138.  Nature    and    effect 145 

from  the  United  States 145 

from  the  State 146 

139.  Construction   of   legislative   grants 146 

140.  Formal  -requisites    147 

practical    form    148 

CHAPTER  XI. 

PATENTS. 

141.  Patents   defined    150 

149.  Patents  from  the  United  States 150 

formal  parts    151 

150.  Validity   151 

151.  Continued,    delivery 152 

patents  need  no  delivery 153 

take  effect  by  registration 153 

152.  General  land   office   record 154 

its  object  and  purport 154 

153.  Operation  and  effect  of  patents 155 

its   evidence   of    governmental  action 156 

when  operating  only  as  a   quit-claim 156 

154.  Continued    156 

by  what  laws  patents  construed 157 

purchaser  need  not   look  behind  patent 157 

but  is  chargeable  with  defects  upon  its  face 157 

155.  Construction    157 

156.  Formal  requisites 158 

abstract  of  patent 158 

157.  Patents  from  the  State 159 

classification   of  State   lands 159 

history   of   State   titles 160 

to  what  State  patents  confer  title 160 

158.  State  patents,  continued 161 

159.  Formal   requisites  of   State   patents 162 

by  whom  issued 162 

CHAPTER  XII. 

SURVEYS,   PL.\TS   AND   SL'BDmSIONS. 

160.  General   remarks    163 

161.  Di\-isions   of   the   public   domain 163 

townships    163 


ANALYSIS   OP    CONTENTS.  XV 

SBC.  PAQl. 

sections 1G4 

plan  of  township,  numhers  and  base  lines Itifi 

township  plats    16.") 

163.  Subdivision  of  sections 166 

illustration  of  legal  subdivisions 166 

illustration  of  fractional  section 168 

sketch   maps    1 68 

164.  Rectangular  system  of  U.  S.  surveying 16S 

principal  base  line  and  meridian 169 

165.  Meander  lines    170 

166.  Plats    and    subdivisions 171 

167.  Formal   requisites    172 

abstract  of  subdivision 172 

168.  Effect    of   registration 174 

169.  Vacation   and    cancellation 174 

abstract   of  vacation \7'i 

170.  Dedication  by  plat 176 

distinguished  from   reservation 177 

171.  Re-surveys  177 

CHAPTER  XIII. 

FORMAL    P.VBTS    OP    DEEDS. 

172.  Operative  parts  of  a  deed 179 

173.  Names  of  parties 180 

174.  Grantors    180 

175.  Grantees    181 

176.  Nature   of   the    instrument 18.1 

177.  Date   of   instrument 184 

178.  Registration    185 

179.  Consideration    18"* 

180.  Effect   of   consideration IHti 

181.  Words  of  grant 187 

when  implying  covenants 188 

182.  Words  of  purchase  and   limitation 189 

rule  in  Shelly 's  case 189 

18.'J.     Description  of  property 190 

184.  Description,    sufficiency    190 

185.  Description,  identification    191 

186.  Description,  construction   191 

187.  Special   recitals    19.1 

188.  The  habendum   19.1 

189.  Exceptions  and  reservations 194 

190.  Conditions  and  n-HtrictionH 19.'i 

191.  CovcnantB    ll*"* 

192.  Execution     200 

193.  Signature  UOO 

194.  Seal     'JOl 

195.  Attentat  ion    202 

196.  Acknowledgment  20:t 


xvi  ANALYSIS    OF    CX^NTENTS. 

SEC.  P'^OK. 

197.  Delivery 207 

198.  Ancient  deeds -^•' 

199.  Stamps     -'"J 


CHAPTER  XIV. 

ERROKS,    OMI.SSIONS    .\ND    DEFECTS. 

200.  Error  generally    212 

201.  Defect  of  parties,  grantor 213 

202.  Defect  of   parties,  grantee 215 

203.  Disparity   of   dates 217 

204.  Technical  phrases    217 

205.  Misdescription,  uncertainty   218 

206.  Misdescription,   omission    220 

207.  Misdescription,  Quantity    220 

208.  Defective   covenants    221 

209.  Defective   acknowledgment    • 222 

•210.  Continued     224 

certificates  of  conformity 226 

211.     Repugnancy     228 


CHAPTER  XV. 

CONVEYANCES    BY    INDIVIDUALS. 

212.  Deeds  in  general 229 

213.  Deeds  poll  and   indentures 230 

214.  Construction  and   effect  of  deeds 230 

215.  Validity   231 

void   and    voidable    distinguished 231 

latent   ambiguities    232 

216.  Warranty  deeds   232 

legal  import   232 

217.  Abstract  of  warranty  deed 233 

practical  example   233 

218.  Notes    235 

219.  Quit-claim  deeds    235 

legal  import  236 

220.  Abstract  of  quit-claim  deeds 237 

221.  Effect  of  covenants  in  quit-claim   deeds 238 

222.  Special  warranty  deeds 239 

legal  effect  240 

223.  Statutory  forms 241 

224.  Common  law  conveyances 241 

225.  Release     242 

226.  Confirmation   243 

227.  Surrender    243 

practical  example  244 

228.  Assignment    244 


ANALYSIS   OF    CONTENTS.  XVI I 

SEC.  PAGE. 

229.  Conveyances  in  futuro 245 

practical  example   246 

230.  Conveyance   of  .special   interests   and   estates 248 

231.  Continued,  instances   250 

practical  example   251 

232.  Kestrictive  and  conditional   conveyances 252 

233.  Proliibited  conveyances,   adverse   seizin 253 

234.  Continued;    fraudulent    conveyances 254 

235.  Conveyances  subject   to   incumbrance 255 

236.  Dedication  by  deed .  256 

237.  Resulting  trusts   257 

238.  Re-records  and  duplicates 258 

practical    example    258 

249.     Corrected   records    259 


CHAPTER  XVI. 

SPECIAL  CLASSES  OF   INDIVIDUAL  CONVEYANCES. 

240.  Marriage  settlements .   261 

240a.  Antenuptial  agreements  ■   262 

241.  Conveyances  to  husband  and  wife 263 

community  property   26.3 

242.  Conveyances    between    husband    and    wife 264 

243.  Conveyances  by  married  woman 26.") 

244.  Effect   of   wife 's   conveyance 267 

245.  Continued ;   a(;knowledgment    268 

246.  Release    of   dower .   269 

practical    example    .    270 

247.  Joint  tenancies  and  tenancies  in  common  270 

248.  Partition   deeds    271 

practical  example   272 

249.  Partnership  conveyances    .272 

2.50.     Corporate  ionveyanees    -'71 

251.  Statutes   of    mortmain 276 

252.  Power   of    acquisition;    user...  277 

253.  Municipal   corporations    277 

254.  Conveyances    to    corporations..  27.S 

255.  Conveyances   liy   corporations.  .  .  .  27y 

practical  example   -'Mu 

256.  Continued;   execution,  acknowledgniont.  .  -Hi 

practiciil  example    -'HL' 

257.  Acts  of  oflicers  in  excess  of  cliarter  powers.  .  -SI 

258.  Itecord  of  seal 2X5 

259.  Conveyances  by   imoritorated    relijjiouN  Hocictif"  2M6 

260.  Heirs  at    law 287 

261.  I'ostobit  conveyanceH   288 

262.  ConveyanceH  by  deleKnted  authority..  288 

practical  examph-  288 

263.  PowerM   of    attorney .  290 

pra«*ticnl  exumi»l<'  291 


Xviii  ANALYSIS   OP   CONTENTS. 

SBC.  PAGE. 

264.  Revocatioua  292 

265.  Conveyances   in   trust 293 

266.  Revocation   of   trust 295 

267.  Declarations  of  trust 296 

practical  example 296 

268.  Removal  or  substitution  of  trustees 297 

269.  Resignation,   refusal   to   act 298 


CHAPTER  XVII. 

OmCIAL    CONVEYANCES. 

270.  Defined  and  distinguished 299 

271.  Official   deeds  generally 299 

272.  Recitals    300 

273.  Covenants    301 

274.  Sheriff 's  deed;  on  execution 301 

275.  Continued ;   acknowledgment   302 

276.  Continued;   operation  and  effect 30;5 

277.  Continued;    imperfect   description 304 

278.  Statutory  sheriff 's  deeds 304 

practical  example   305 

279.  Sheriff 's  deed ;   under  decree 306 

280.  Master's,  commissioner's  and  referee's  deeds 306 

practical  example   307 

281.  Trustees  307 

282.  Transfers  of  the  legal  estate  by  trustees 309 

283.  Power  of  sale  and  trust  of  sale  distinguished 310 

284.  Trustee 's  deeds    311 

practical   example    312 

285.  Mortgagee 's   deeds    314 

286.  Executors   and   administrators 316 

287.  Executor 's  deeds   316 

288.  Administrator 's   deeds    317 

practical  example   318 

289.  Administrator  with  will   annexed 320 

290.  Guardian 's  deeds    321 

291.  Trustees  can  not  become  purchasers 322 

292.  Continued;    exceptions  and   qualifications 323 

CHAPTER  XVIII. 

ASSIGNMENTS,    INSOLVENCY'    AND    BANKRUPTCY. 

293.  Assignments  generally    324 

294.  Voluntary  assignments   324 

295.  Validity   of   assignments 326 

296.  Formal   requisites    326 

297.  Title    of    assignee 328 

298.  Construction  and  effect 328 

299.  Conflict  of  laws ;   foreign  assignments 329 


ANALYSIS   OP    CONTENTS.  XIX 

SEC.  PAGE. 

300.  Insolvency   329 

301.  Bankruptcy   330 

302.  Jurisdiction   and   practice 330 

303.  Classification     331 

30-i.     Nature  and  effect  of  bankruptcy.  ...                  331 

305.  Procedure    331 

306.  Bankruptcy   proceedings ;    how   shown 332 

practical  example   333 

307.  The  assignment   334 

practical  example   334 

308.  Assignee 's  or  trustee  "s  deed 335 

practical  example   335 

309.  Discharge  in  bankruptcy 337 

practical  example 338 


CHAPTER  XIX. 

AGREEMENTS    FOR   CONVEYANCE. 

310.  Land    contracts    .339 

311.  Relation  of  parties  under  land  contracts.  .                                         ...  340 

312.  Effect    and   operation   of   the    contract....                                     340 

313.  Nature   and   requisites 341 

314.  As   affected   by   the   recording   acts .  342 

315.  Construction   of  land   contracts 342 

316.  Formal  parts    342 

abstract  of  agreement   to  deed 343 

317.  Assignment  of  the  contract 343 

318.  Performance;  suflSeicncy  of  deed  and  title 345 

319.  Forfeited  contracts   346 

320.  Bond  for  deed 347 

practical  illustration    347 

321.  Agreements  for  conveyancp  liy  will..  348 

CHAPTER  XX. 


322.  Nature   and    requisitcH 349 

323.  Formal  parts    350 

abstract   of   Ica.sc 351 

324.  Covenants   and   conditions.  352 

325.  Implied  covenants 353 

326.  Agricultural    lands    353 

327.  Assignment    of    lease .  35-1 

CHAPTEH   XXI. 

MIHCEI.I-ANEOl'.S    KVIDKNCK.  OF    ANU    AfrrOTINO    TITI.K. 

328.  General   romarkn    .  .  <'6 

329.  IrregtJlnr    inBtrumont-  356 


XX  ANALYSIS    OP    CONTENTS. 

SEC.  PAGE. 

330.  Municipal  ordinaiues    357 

practical  cxanipU'   358 

331.  Executive   approval   of   ordinances 360 

332.  Operation  and  effect  of  ordinances   360 

333.  Municipal  resolutions    360 

334.  Official  certificates  361 

practical   example    362 

335.  Incorporeal  hereditaments   3D.i 

336.  Easements  and  servitudes 363 

337.  Party  wall  agreements   364 

practical  example    365 

338.  Letters     36."^ 

339.  Affidavits   366 

practical  example    367 

340.  Continued;  general  requisites;   sufficiency.  .  .  .' 368 

341.  Unrecorded  evidence 368 


CHAPTER  XXII. 
MORTGAGED. 

342.  Nature  of  mortgages 369 

343.  Different  kinds  of  mortgages 370 

344.  The  equity  of  redemption 371 

345.  Rights   of   mortgagor 372 

346.  Mortgages  as  affected  by  estoppel 372 

347.  Merger   373 

348.  Equitable  mortgages   375 

rules  for  determining 376 

import  and  effect 376 

349.  Vendor 's  liens 377 

350.  Mortgages  proper 377 

abstract  of   378 

351.  Statutory  forms   380 

352.  l^ncertainty  or  error  of  description 380 

353.  Covenants  in  mortgages   381 

354.  Effect  of  special  covenants 382 

355.  Special  stipulations  and  conditions .  383 

356.  Effect  of  informality 384 

357.  Purchase  money  mortgages 384 

practical  examples  385 

358.  Mortgages  of  homestead 385 

359.  Mortgage  of  after  ac((uired  property 386 

360.  Record   of   mortgages 387 

361.  Notice  imparted  from  possession 389 

362.  Re-records    389 

363.  Trust  deeds 390 

practical  example  391 

364.  Power  of  sale  393 

365.  Assignment    394 

366;     Operation  and  effect  of  assignments 395 


ANALYSIS   OP   CONTENTS.  XXI 

SEC.  PAGE. 

367.  Formal  requisites  of  assignments 396 

368.  E^lease   and   satisfaction 397 

369.  Form  and  requisites  of  release 398 

practical  example  398 

370.  Eelease  by  trustee  399 

371.  Marginal  discharge   401 

practical  example   401 

372.  Foreclosure    402 

373.  Proof  of  title  under  foreclosure 402 

CHAPTER  XXIII. 
wHiLs. 

374.  Wills  generally   404 

375.  Nuncupative  wills 405 

376.  Nature  of  testamentary  titles 405 

377.  Devises    406 

378.  Operation  and  effect  of  devises 406 

379.  Validity  of  devises 406 

380.  Testamentary  capacity  407 

381.  Construction  of  wills 407 

381a.  Errors  of  description 409 

382.  Repugnancy 410 

383.  Descent  and  purchase   411 

384.  Words  of  grant 412 

385.  Words  of  purchase  and  limitation 413 

386.  Rule  in  Shelly 's  ease 414 

387.  Interpretation  of  particular  words  and  phrases 415 

388.  Words  which  pass  real  estate 416 

389.  Limitations  and  remainders 418 

390.  Devise  to  a  class 419 

391.  Gift  of  the  income  of  realty 419 

392.  Devise  with  power  of  disposition 420 

393.  Indeterminate   devise    422 

394.  Devise  on  condition  precedent 423 

395.  Conditional  devise;   marriage   424 

396.  Contingent  remainders   425 

397.  Contingent  reversion  425 

398.  Devise  to  married  woman 426 

399.  Devises  to  executors  in  trust 427 

400.  Bequest  to  the  devise  by  description 428 

401.  Precatory   trusts    429 

402.  Perpetuities    429 

403.  Lapsed    devise    430 

404.  Devises  for  the  payment  of  debts 430 

405.  Charges    on    lands    devised 431 

406.  Equitable  conversion  432 

407.  The  residuary  clause  433 

408.  Codicils    433 

409.  Revocation     434 


XXU  AXAliYSIS    OF    CONTEINTS. 

SEC.  PAGE. 

410.  Formal  requisites 435 

411.  Abstract  of  wills 4:iG 

412.  Method  of  arrangement 437 

413.  Practical  examples    438 

proof  of  probate -139 

414.  Probate  of  wills 440 

415.  Effect   of  probate 440 

416.  Foreign  probate 441 

practical  example    443 

417.  Abstract  of  probate  proceedings 443 

practical  examples   444 

CHAPTER  XXIV. 

LIENS,    CH.\RGES    AND    INCUMBRANCES. 

418.  Liens   generally    447 

419.  How  created   447 

420.  Operation   and   effect 448 

421.  Method  of  arrangement 448 

422.  Mortgages   448 

423.  Dower  449 

424.  Judgments  and  executions ,  .  449 

425.  Judicial  and  execution  sales 449 

426.  Lis  pendens  and  attachment 450 

427.  Decedent 's  debts 450 

428.  Taxes    450 

429.  Municipal  liens 450 

430.  Official  bonds   450 

431.  Leases    451 

432.  Vendor 's  liens    452 

433.  Mechanic  's  lien 453 

434.  Priority    453 

435.  Estate  to  which  lien  attaches 454 

436.  Limitation  of  lien 455 

437.  Assignability     456 

438.  Foreclosure  of  lien 456 

CHAPTER  XXV. 

LIS    PENDENS    AND    ATTACHMENT. 

439.  Doctrine   of    lis   pendens 457 

440.  Requisites  of  lis  pendens 458 

441.  Continued;  effect  of  dismissal 458 

442.  Notice  lis  pendens 459 

practical  example   480 

443.  Property  drawn  incidentally  in  question 460 

444.  Attachment   461 

445.  Formal  requisites  of  attachment 461 

practical  example   462 


ANALYSIS   OF   CONTENTS.  XXlll 

CHAPTER  XXVI. 

JUDGMENTS  AND  DECREES. 
SEC.  PAGE, 

446.  Judgments  and  decrees ;  defined  and  distinguished 464 

447.  Operation  and  effect  of  judgments 46;'5 

448.  Lien  of  judgments 46.i 

449.  Territorial  extent  of  lien 467 

450.  Duration  of  lien 468 

451.  Priority    469 

452.  After-acquired   property    471 

453.  Docketing 471 

454.  Formal  requisites  of  judgments 472 

practical  example   473 

455.  Antecedent   proceedings    475 

456.  Judgments  against  a  deceased  person 476 

457.  Judgments    against    infants 476 

458.  Exemptions   477 

459.  Satisfaction  and  discharge 477 

460.  Decrees  classified  and  distinguished 478 

461.  Operation  and  effect  of  decrees 479 

462.  Decrees  rendered  on  constructive  notice 479 

463.  Lien  of  decrees 480 

464.  Formal  requisites  of  decrees 481 

465.  Abstract  of  decrees 483 

practical  example   483 

466.  Errors  and  defects 484 

467.  Continued ;   middle  names 485 

468.  Continued  ;  initials  ;  idem  sonans 487 

469.  Operation  and  effect  of  probate  decrees , 489 

470.  Foreign  judgments  and  decrees 489 


CHAPTER  XXVII. 

JUDICIAL  AND  EXECUTION  SALES. 

471.  Judicial  and  execution  sales;  defined  and  distinguished 491 

472.  Execution  sales ;  validity  and  effect 492 

473.  Title  under  execution  sale 494 

474.  When  the  title  vests 495 

475.  The  writ 495 

476.  The  levy 496 

477.  Notice  of  sale 496 

practical  example   497 

478.  Proof   of   publication 497 

practical  example   498 

479.  Execution  sale  as  affected  by  death 499 

480.  Exemptions    499 

481.  Dower  rights 500 

482.  Judicial  sales ;  validity  and  effect 500 

483.  Title    under    judicial    sales 501 

484.  Rights  of  purchaser 502 


XXIV  ANALYSIS    OP    CON'l'ENTS. 

SEC.  PAGE. 

48.").     (.'ompolliiif;  jmrcliasiT  to  take  title 502 

486.  Order  of   confiriiintion 503 

487.  Kffoi't  of  0011  tirniat ion 504 

488.  Ccrtifioato  of  .sale 505 

practical  cxainpU- ;  i»y  sheriff .".06 

practical  example ;  by  master 507 

489.  .Vs.signiiient  of  eertilieate 508 

490.  Proof  of  title  under  .judicial  and  execution  sales 508 

491.  Continued ;  presumptions   509 

492.  Prol.ate  sales   510 

49.'i.     Nature  and  requisites  of  probate  sales 513 

494.      .Mistract  of  probate  sales 514 

jiractioal    example    514 

CHAPTER  XXVIII. 

ACTIONS  AND  PROCEEDINGS. 

49">.     Cliaiicery  proceedinjjs  generally 517 

as  a ffected  by  codes 517 

496.  .\iitliority  and  jurisdiction  of  chancery  courts 518 

497.  .\uthority  and  jurisdiction  of  probate  courts 519 

498.  .\ctions  and  proceedings  to  be  noticed 520 

499.  .lurisdiction  the  great  essential 520 

500.  Notice    afforded    by    chancery    records 521 

501.  Process 522 

502.  Fonnalities  of  a  summons 523 

503.  Service    524 

504.  Proof  of  service 526 

505.  Affidavit  and  order  of  publication 528 

506.  Appearance  without  process 529 

.507.     Master  "s  and  referee  's  reports 529 

508.     Verdicts    530 

.")09.     Abstract  of  chancery  proceedings 530 

practical  example   531 

."i  10.      I  n junctions 532 

511.  Kjoctnient    533 

512.  Quid  timet   535 

513.  Partition    536 

practical  example   538 

514.  Specific  j)erforiiiance   539 

51.".     Redemption   541 

516.     Foreclosure 54] 

enumeration  of  methods 542 

.")  1 7.     Dower     542 

518.  Divorce  543 

practical  example 546 

519.  Right  of  eminent  domain 547 

520.  Proceedings  for  condemnation  and  assessment 548 

practical  examples   549 

521 .  Construction  of  wills 550 


ANALYSIS   OP    CONTENTS.  XXV 
CHAPTER  XXIX. 

TAXES  AND  TAX  TITLES. 
SEC.  PAGE. 

522.  Definition ;  nature  and  scope  of  the  taxing  power 551 

523.  Subjects  of  taxation 552 

524.  Lien  of  taxes 553 

525.  Tax  titles    554 

requisites  and  effect 554 

526.  Nature  of  tax  titles ;  dependent  or  independent 555 

527.  Proceedings  incident  to  taxation 556 

528.  Description  of  land  ;  assessor's  plats 557 

529.  Sale  for  non-payment 557 

practical  examples    558 

530.  Forfeitures    559 

531.  Tax  sales;  tax  payer  as  purchaser 560 

532.  Rights  of  purchaser 561 

533.  Redemption   562 

534.  Certificate  of  sale 562 

practical  example    563 

535.  Tax  deeds   563 

536.  Continued;  statutory  modifications  of  common  law  rules 564 

537.  Fonnal  parts   566 

practical  examples    567 

538.  Effect  of  deed  as  evidence 568 

539.  Tax  deed ;  possession  ;  limitation 570 

540.  Tax   abstracts    571 

541.  Special  assessments  571 


CHAPTER  XXX. 

DESCENTS. 

542.  Title  by  descent 573 

543.  Nature,  operation  and  incidents  of  title 574 

544.  Inheritance  as  dependent  upon  seizin 575 

545.  Heirship;   its  rights  and   privileges 575 

546.  The  Irue  of  succession 576 

547.  General  rule  of  descents 576 

548.  The  right  of  representation 577 

549.  Preferences    577 

550.  Who  may  take  by  descent ;  aliens 578 

551.  Continued ;  adoptive  heirs 579 

552.  Ancestral  estates ;  half  blood 580 

553.  Surviving  consorts 580 

554.  Coparceners 581 

555.  What  descends 581 

556.  How  affected  by  ancestral  covenants 581 

557.  Liability  for  ancestral  debts 581 

558.  Creditor 's  liens 582 

559.  Equitable  conversion   583 

560.  Proof  of  heirship 584 


XXvi  ANALYSIS   OF    C0NTB1«ITS. 

SKO.  PAGE. 

561.  Proof  of  adoption    "'85 

562.  Proof  of  death SSf) 

563.  Continued;  oflQcial  registraf ion 588 

practicable  example   589 

564.  Continued ;  probate  of  death 589 

565.  Proof  of  birth  and  legitimacy 590 

566.  Presumption   of   legitimacy 592 

567.  Validity  of  descents 592 

568.  Abstract  of  descents 593 

569.  Continued ;    probate  proceedings 694 

practical  example   594 

570.  Settlement  without  administration 595 

571.  Escheat   596 


CHAPTER  XXXI. 

ADVERSE  TITLE. 

572.  Adverse  title,  generally  considered 598 

573.  Adverse  conveyances    598 

practical  examples 599 

574.  Character  of  adverse  possession 601 

575.  Color  of  title 60:5 

576.  Adverse  possession  under  color  of  title 605 

577.  Constructive  possession 605 

578.  Adverse  possession  from  user 60(5 

579.  Naked  possession  without  claim 607 

580.  Tacking    607 

581.  Possession  as  notice 608 

582.  Who  may  acquire  adverse  title 608 

583.  Remainder-men    609 

584.  Reversioners   610 

585.  Tenants  in  common 610 

586.  Persons  under  disability 611 

587.  Married  women 611 

588.  Adverse  rights  as  against  the  State 611 

589.  Effect   of   adverse   possession 612 

590.  Proofs  to  support  title  by  adverse  possession 613 

CHAPTER  XXXII. 

OPINIONS  OF  TITLE. 

591.  Perusing  the  abstract  615 

Mr.  Sugdrn  's  views 615 

592.  Note  taking 616 

593.  Examination  of  the  muniments 617 

594.  Examination  of  deeds  619 

595.  Examination  of  legal  proceedings  and  judgments 620 

596.  Marginal  notes  and  requisitions 622 

597.  Continued;  English  and  American  Methods  compared 623 


ANALYSIS   OP    CONTENTS.  XXvil 

SEO.  PAGE. 

598.  Answers  to  requisitions 623 

599.  Affidavits  of  pedigree 624 

practical  example   625 

600.  Analysis  of  title 626 

practical  example   627 

601.  Analytical  chains 629 

practical  example    630 

602.  Sketch  maps   ^ 629 

603.  Preservation  of  memoranda   631 

604.  Passing  the  title 632 

605.  What  constitutes  a   valid  title 633 

606.  Flaws    634 

607.  Clouds   upon   title 636 

608.  Inquiries  in  pais 637 

609.  Continued;  mechanic  's  liens 639 

610.  Continued;  easements  and  servitudes 640 

611.  Continued ;  homesteads 641 

612.  Printed  copies    642 

613.  Framing  opinions 643 

614.  Opinions  of  title   644 

practical  examples   645 

615.  Continued ;  certificates  of  title 646 

616.  Opinions  based  upon  the  abstract 647 

practical  example 648 

617.  Perspicuity  of  expression 651 

618.  Oral  opinions   653 

619.  Liability  for  erroneous  opinions 654 

620.  Conclusion   656 


APPENDIX. 

New  England  abstracts 659 

English  analysis  of  abstract 660 

Order  for  examination  of  title 662 

Tables  of  land  measures 662 

Rules  for  measuring  land 665 

Spanish-French    land    measures 666 

Spanish-Mexican  land  measures 668 

Texas  land  measures 671 


X 


ABSTRACTS 

AND 

EXAMINATIONS  OF  TITLE. 


CHAPTER  I. 

PRELIMINARY  OBSERVATIONS. 


u. 

Introduetoiy. 

§    8. 

Qualifications     of     the     exam- 

§2. 

Abstracts  deliued. 

iner. 

§:i. 

Origin  of  abstracts. 

§    9. 

Examiner 's   liability   for  error, 

§4. 

Essentials   of    the   abstrai-t. 

§  lu. 

Character     of    examiner's    lia- 

§5. 

The    English    method. 

bility. 

§6. 

The  American  method. 

§11. 

Duty  of  furnishing  abstract. 

§7. 

Abstracts       and       examinations 

§  12. 

Taxation  of  abstract  books. 

distinguished. 

Uo. 

Exemption  of  abstract  books. 

§  1.  Introductory.  Within  comparatively  recent  years  the 
business  of  furnishing  abstracts  of  title  to  real  property  has  grown 
to  enormous  proportions  in  the  United  States,  calling  for  a  class  of 
highly  skilled  conveyancers  with  special  training  and  qualifications 
for  the  work,  while  the  examination  of  titles  has  practically  created 
a  new  department  of  legal  labor.  To  assist,  in  an  humble  way, 
this  large  and  constantly  increasing  class  of  practitioners,  by  a 
statement  of  the  most  approved  methods  of  compiling  and  arrang- 
ing the  abstract,  the  sources  of  information  and  the  aids  derived 
from  indexes  and  references,  together  with  a  brief  review  of  the 
general  principles  of  law  applicable  to  the  examination  of  titles, 
will  be  the  object  of  this  work.  In  the  latter  respect  it  is  neces- 
sarily brief,  and  consequently  elementary,  and  is  intended  rather 
as  a  series  of  helpful  hints  and  suggestions  that  may  incite  the 
examiner  to  more  extended  inquiry,  than  as  a  full  elucidation  of 
the  law  on  the  subjects  discussed. 

§2.  Abstracts  Defined.  An  abstract  may  be  defined  as  a  con- 
densed history  of  the  title  to  land,  consisting  of  a  synopsis  or 

1 

Warvelle  Abstracts — 1 


2  ABJSTttACTtJ   01''    TlTUi.  [§  2 

bummury  oi'  the  material  or  operative  portions  of  ail  of  the  various 
iiiijiruuiculb  of  couvcyauce  wliich  m  any  maimer  alfeet  said  land, 
or  Llic  iiiie  Ihfiulo,  or  any  esLaie  or  interest  therein,  together  with 
a  staleiaeiit  of  all  liens,  eharj^es  or  liabilities  to  vvhieh  the  same 
may  be  subjecl,  and  of  uhieh  it  is  in  any  way  material  for  pur- 
chasers, lo  be  apprised.  It  is  usually  arrauged  in  ehronologieal 
order  and  is  intended  to  show  the  origin,  eourse  and  incidents  of 
the  liilc  witlutut  llie  neee.s.sity  of  referring  to  the  original  sources 
ot"  informalioii. 

§  3.  Origin  of  Abstracts.  AltJiough  the  use  of  abstracts  of 
title  has  nuu  btL-onio  universal,  where  free  alienation  of  land  is 
permitted  and  property  rights  are  recognized,  but  little  can  be 
said  as  lo  the  origin  of  the  practice.  The  earliest  English  works 
on  the  subject,  published  during  the  lirst  half  of  the  last  century, 
treat  of  the  abstract  as  an  est-ablished  fact,  but  make  no  mention 
of  the  period  at  which  it  lirst  began  to  be  used. 

During  the  earlier  years  of  the  United  States,  but  little  atten- 
tion was  paid  to  title  in  purchases  ot  real  property.  Ordinarily 
the  buyer  was  fully  satisfied  with  the  vendor's  "warrantee"  deed, 
the  covenants  thereof  being  taken  as  conclusive  evidence  of  all 
they  recited.  Xo  inquiry  was  made  with  respect  to  the  past,  pres- 
ent possession  being  considered  a  sufficient  guarantee  of  owner- 
ship, and  no  thought  was  taken  as  to  the  future.  Transfers  of 
land  were  frequently  accompanied  by  the  vendor's  purchase  deeds 
and  other  muniments  upon  which  the  title  was  based,  and  such 
may  still  be  the  custom  in  some  parts  of  the  country.  But,  with 
the  flood  of  years,  the  increasing  commercial  activity  of  the  age, 
the  removal  of  propertj-  disqualifications  and  other  impediments 
to  alienation,  has  come  a  vast  accumulation  of  evidences  of  title, 
frefjucntly  involving  complex  interests  that  call  for  a  high  degree 
of  skill  to  arrange  and  classify,  as  well  as  to  interpret  and  adjust. 
Land,  too,  in  manj'  localities,  has  acquired  an  almost  fabulous 
value  and  purchaser's  now  part  warily  with  their  money  and  only 
on  strong  assurance  of  title.  It  is  no  longer  practical,  save  in  rare 
instances,  to  examine  title  by  specific  inspection  of  the  original 
documents,  were  such  always  available,  or  to  laboriously  follow  on 
the  records  the  various  mutations  through  which  it  has  passed. 
Yet,  as  purchasers  take  at  their  peril,  save  as  they  may  find  pro- 
tection in  the  covenants  of  their  deeds,  it  is  necessary  that  they 
should  bo  apprised  of  whatever  may  affect  the  validity  of  the  title 
or  estate  they  take,  of  which  the  law  charges  them  with  actual  or 
constructive  notice.     To  satisfy  this  demand  has  been  developed 


§  5]  PRELIMINARY   OBSERVATIONS.  3 

the  modern  abstract  of  title,  together  with  its  incident,  the  ex- 
aminer. 

§4.  Essentials  of  the  Abstract.  Without  going  into  detail  at 
this  time  it  may  be  stated  generall}^,  that  the  abstract  should  fur- 
nish all  the  material  information  contained  in  the  original  docu- 
ments and  records  from  which  it  is  compiled,  and  that,  as  fully 
and  completely  as  if  they  had  been  specifically  inspected.  It 
should  show,  when  from  the  source  of  title,  the  inceptive  meas- 
ures ;  the  foundation  of  title ;  the  devolution  of  same  to  date  of 
examination,  including  all  transfers  of  any  and  every  interest ;  the 
incidents  of  the  land  itself,  divisions  and  subdivisions;  any  and 
all  adverse  titles  or  claims;  all  liens,  charges  and  incumbrances, 
however  created,  including  judgments  against  the  person  during 
the  period  the  law  makes  them  a  lien  on  land ;  taxes,  special  assess- 
ments, and  statutory  liens;  and  every  other  matter  or  thing  ap- 
pearing of  record  that  may  affect,  implicate  or  impair  the  title. 
To  these,  in  proper  cases,  may  be  added  any  matter  in  pais,  that 
to  the  examiner  may  seem  pertinent  or  material. 

§  5,  The  English  Method.  According  to  Preston,^  it  is  the  cus- 
tom in  England  when  land,  or  other  property  which  does  not  pass 
by  mere  delivery  but  is  held  by  a  title  depending  on  documental 
evidence,  is  sold,  for  the  solicitor  for  the  vendor  to  prepare  an 
abstract  of  the  title,  and  the  solicitor  for  the  purchaser  to  com- 
pare the  abstract  so  furnished,  with  the  deeds,  wills,  etc.,  that  con- 
stitute the  chain,  to  see  that  it  contains  a  correct  and  faithful 
statement  of  all  circumstances  disclosed  by  them  relevant  to  the 
title,  or  depending  on  extraneous  facts;  as  marriages,  burials,  bap- 
tisms, descents,  etc.  The  abstract  is  prepared  from  the  original 
documents,  and  is  delivered  to  the  purchaser  who  founds  on  it 
such  "requisitions"  by  way  of  further  inquiry  or  objection  as  he 
thinks  proper.  The  purchaser  must  then  send  in  his  objections 
and  queries  within  a  limited  time  from  the  date  of  delivery  of  the 
abstract,  and  in  default  of  such  requisitions  or  objections  he  will 
be  deemed  to  have  accepted  the  title.  The  objections  and  queries, 
when  made,  are  answered  by  statements  and  explanations,  signed 
by  the  solicitor  or  party  making  them,  and  form  a  part  of  the 
abstract.^     The  method   of  abstracting  the   instruments  and  ar- 

1 1  Preston  on  Abstracts,  1. 
2  Deane  's   Conveyancing,    325 ;    Lee 
on  Abstracts,  20. 


4  ABSTRACTS   OF   TITLE.  [§  6 

ranging  tlic  <'liaiii.  diftVrs  in   no  material   resi)ec't  fi'oni  that  now 
commonly  employed  in  tli(>  Tnited  States. 

§6.  The  American  Method.  Aside  from  an  arrangement  of 
indexes  and  references,  there  is  no  system  of  title  abslracls  that 
can  he  said  to  be  distinctively  American,  the  methods  varying 
somewhat  in  dilTerent  sections,  though  preserving  a  general  simili- 
tnde.  The  spirit  and  o]ieration  of  our  laws  preclude  the  adoption 
of  the  English  methods  to  any  appreciable  extent,  although  it 
would  seem  that  tlie  abstract  makers  of  the  Eastern  States  still 
follow  as  closely  as  i^ossible  in  the  footsteps  of  their  English 
predecessors,  and  their  work  is  usually  constructed  upon  the  regu- 
lation English  model.  Tn  the  ^liddle  and  Western  States,  the 
operation  of  the  United  States  land  laws;  the  later  methods  of 
survey  and  subdivision,  and  the  almost  total  annihilation  of  many 
of  the  old  common-law  rules  relative  to  the  acquisition  and  trans- 
fer of  estates  in  land,  have  caused  a  wide  departure  from  the  con- 
ventional system  expounded  by  Preston,  Moore  and  other  English 
writers,  as  well  as  that  now,  or  formerly,  used  in  the  Colonial 
States.  The  American  abstract  is  not  prepared  from  the  original 
documents,  but  from  recorded  evidences  thereof  found  in  the 
oflEices  of  registration,  courts,  and  other  legal  depositories,  and,  as 
a  rule,  shows  only  such  title  as  is  declucible  of  record.  It  is  not 
identical  with  the  Engli.sh  "abstract,"  as  will  be  seen,  and  by  way 
of  distinction  is  frequently  termed  an  "examination."  Bo^h 
terms,  how^ever,  are  used  interchangeably  by  the  profession  and 
are  practically  synonymous. 

In  compiling  an  abstract,  the  examiner  simply  collects,  con- 
denses and  arranges  the  information  found  of  record,  without  any 
expression  as  to  the  rights  of  any  of  the  parties  named  therein. 
The  work  is  then  turned  over  to  counsel,  who  criticallj^  examines 
each  instrument  shown,  or  statement  made;  decides  upon  the  sufifi- 
ciency  and  legal  effect  of  the  conveyances,  noting  any  defects  or 
irregularities  therein,  or  in  any  of  the  proceedings  necessary  to 
divest  or  acquire  title;  determines  the  relative  rights  and  legal 
relations  of  the  parties  to  the  land  in  question  and  to  each  other; 
and  finally  formulates  his  views  in  a  written  opinion  which  is  an- 
nexed to  the  abstract,  and  on  the  strength  of  which  future  sales  or 
other  dispositions  of  the  propertj'  are  usually  made. 

§7.  Abstracts    and    Examinations    Distingxiished.    As   before 

stated  the  terms  abstract  and  examination  in  their  ordinary  ac- 
ceptation are  synonymous,  but  for  the  purpose  of  defining  the 
broad  scope  of  their  inquiry,  as  compared  with  the  narrowness  and 


§  8]  PRELIMINARY  OBSERVATIONS.  5 

singleness  of  the  English  method,  American  abstract  makers  fre- 
quently prefer  the  latter  term  to  designate  their  work.  The  Eng- 
lish abstract  is  largely  personal  in  its  object.  That  is,  it  seeks  to 
show  onl}^  the  title  of  some  particular  individual,  rather  than  the 
general  condition  of  the  title  and  is  usually  expressed  in  the  cap- 
tion to  be,  "An  abstract  of  the  title  of  John  Doe,  Esq.,  to  that  cer- 
tain messuage,"  etc.  The  nature  of  English  land  tenures  and  the 
peculiar  conditions  attending  the  ownership  of  real  property  in 
that  country  preclude  a  showing  of  the  origin  or  course  of  title  for 
any  considerable  period,  nor  would  that,  perhaps,  be  necessary. 
An  English  abstract  generally  commences  with  some  specific  docu- 
ment, as  a  deed  or  will,  or  frequently  with  a  descent,  and  from  this 
point,  called  the  ' '  root  of  title, ' '  and,  covering  a  period  of  at  least 
sixty  years,  shows  the  successive  links  that  connect  the  present 
title  of  the  person  proposed  with  the  ' '  root. ' '  *  Obviously,  such 
an  abstract,  however  well  it  might  serve  the  purpose  in  England, 
would  be  most  inadequate  in  the  United  States,  where  several  per- 
sons frequently  claim  title  through  different  channels  from  the 
same  source,  not  to  mention  the  many  adverse  titles  springing 
from  independent  sources.  "A  perfect  abstract  of  title,"  says 
Preston,  "means  a  perfect  title  in  the  vendor,"  and  "a  condition 
that  vendor  shall  deliver  an  abstract  of  title,  means,"  says  Sug- 
den,  ' '  the  delivery  of  an  abstract  showing  a  good  title. ' '  *  The 
American  abstract,  though  confined,  as  a  rule,  to  matters  of  record, 
presents  a  far  wider  range.  While  intended  primarily  to  show  the 
present  state  of  the  vendor's  title,  it  does  not  in  terms  purport 
such  purpose,  but  is  a  general  inquiry  into  every  matter  or  thing 
in  any  way  affecting  title  to  the  land,  in  whomsoever  it  may  rest 
and  however  arising  or  acquired,  A  "perfect  abstract,"  as  that 
term  is  understood  in  the  United  States,  shows  the  true  state  of 
the  title,  even  though  it  defeats  that  of  the  vendor,  and  one  that 
is  defective  in  any  of  the  particulars  heretofore  noted  is  not  "per- 
fect" even  though  it  may  show  "a  perfect  title  in  the  vendor." 
The  caption  of  the  American  abstract  expresses  its  true  purpose: 
"an  examination  of  title  to  the  N.  E.  i/i,"  etc.  It  has  none  of  tlie 
personal  features  that  characterize  the  English  abstract,  and  is 
decidedly  an  examination  in  rem. 

§8.  Qualifications  of  the  Examiner.  In  a  recent  Minnesota 
case,  Flandrau,  J.,  reviewing  the  labor  and  skill  necessarily  dis- 
played in  the  compilation  of  an  abstract,  says:  "That  the  making 

3  Deane  's     Conveyancing,     325 ;      1  4  2  Sugd.  V.  &  P.  27. 

Preston  on   Abstracts,   5. 


6  ABSTRACTS   OP   TITLE.  [§  8 

(tf  a  ptM-fet't  abstract  of  title  to  a  piece  of  land,  with  all  the  in- 
cumbrances which  affect  it,  involves  a  great  exercise  of  legal  learn- 
ing' and  careful  research,  no  one  will  dispute.  The  person  pre- 
paring such  an  abstract  must  understand  fully  all  the  laws  on  the 
subject  of  conveyancing,  descent  and  inheritances,  uses  and  trusts, 
devises,  and  in  fact  every  branch  of  the  law  that  can  affect  real 
estate,  in  its  various  mutations  from  owner  to  owner,  sometimes 
by  operation  of  law,  and  again  by  act  of  the  parties."^  Should 
the  abstract  maker,  or  as  we  may  term  him  for  short,  the  "exam- 
iner," possess  the  varied  accomplishments  enumerated  by  the 
learned  judge,  he  will  find  it  much  to  his  advantage  in  the  prosecu- 
tion of  his  work,  yet  it  by  no  means  follows  that  he  may  not  be- 
come proficient  while  lacking  many  of  the  essentials  above  de- 
scribed. The  abstract  maker  is,  in  the  full  sense  of  the  word,  a 
conveyancer,  equally  with  him  who  draughts  and  prepares  the 
original  instruments.  The  difference  is  in  degree,  not  in  kind. 
The  same  laws  which  control  and  direct  the  conveyancer  in  the 
preparation  of  the  originals,  operate  with  equal  effect  in  the  com- 
pilation of  the  abstract,  and  a  general  knowledge  of  such  laws  and 
their  application  is  an  indispensable  requisite,  as  are  also  the 
principles  of  surveying  and  platting.  The  effect  of  laws  relative 
to  conveyancing,  the  transfer  of  estates,  the  devolution  of  titles, 
and  the  manifold  and  perplexing  questions  concerning  the  rights 
and  interests  of  parties  that  may  arise  under  them,  are  subjects 
which  should  properly  be  left  to  counsel  who  is  to  examine  the 
abstract  and  pass  an  opinion  upon  the  title.  Occasionally  the  same 
person  fills  both  offices,  though  this  is  rare  save  in  smaller  places 
or  sparsely  settled  districts,  and,  as  a  rule,  the  union  is  not  pro- 
ductive of  good  results. 

§  9.  Examiner's  Liability  for  Error.  The  degree  of  intelligence 
and  skill  required  of  a  man  by  the  law,  depends  much  upon  his 
calling.  A  professional  man  must  be  specially  educated  or  fitted 
for  the  duties  of  his  vocation,  and  in  addition  to  the  requisite 
technical  knowledge  must  have  reasonable  skill  in  its  application. 
So  the  understanding  implied  from  persons  engaged  in  the  busi- 
ness of  searching  the  public  records,  examining  titles  to  real  prop- 
erty, and  making  abstracts  thereof  for  compensation  is,  that  they 
are  possessed  of  the  requisite  knowledge  and  skill  and  will  exer- 
cise due  and  ordinary  care  in  the  performance  of  their  duties.^ 

B  Banker    v.    Caldwell,    3    Minn.    94  6  Chase  v.  Heaney,  70  111.  268 ;  Lat- 

and  see,  Stephenson  v.  Cone,  24  S.  D.      tin  v.  Gillette,  95  Cal.  317. 
460,  124  X.  W.  439,  26  L.  R.  A.   (N. 

S.)   1207. 


§  9]  PRELIMINARY  OBSERVATIONS.  7 

For  a  failure  in  either  of  these  respects,  resulting  in  damages,  the 
party  injured  is  entitled  to  recover^  Thus,  where  an  abstract 
purports  to  state  the  contents  or  substance  of  an  instrument  the 
customer  is  justified  in  relying  upon  the  statement,  without  making 
an  original  investigation,  and  is  not  guilty  of  negligence  in  so  do- 
ing. If,  in  fact,  there  is  an  error  in  the  abstract,  and  through 
reliance  upon  it  the  customer  has  sustained  injury,  he  may  hold 
the  abstracter  liable  therefor  to  the  extent  of  the  injury  sustained, 
provided  the  error  complained  of  is  such  as  could  have  been 
avoided  by  the  exercise  of  ordinary  care  and  skill  on  the  part  of 
one  possessing  qualifications  adapted  to  the  business  of  abstract- 
ing.® Nor  can  the  abstracter  limit  his  liability  by  a  clause  in  the 
certificate  appended  to  the  abstract  without  specially  calling  his 
client's  attention  to  it.^ 

It  does  not  seem,  however,  that  the  employment  involves  any 
elements  of  gTiaranty  or  indemnity  further  than  that  raised  by 
the  undertaking  to  bring  to  the  discharge  of  the  duty  reasonable 
skill  and  diligence.^®  Thus,  he  should  make  a  full  and  true  search; 
should  examine  the  record  of  every  matter  shown  upon  his  own  or 
the  public  indices  which  affects  the  land  in  question;  should  ac- 
curately abstract  or  digest  every  instrument  or  other  matter  so 
found  and  should  supplement  his  search  by  an  explicit  statement 
or  certificate  of  all  matters  covered  by  it.  He  has  no  right  to  rely 
upon  index  entries  or  marginal  references,  but  should  inspect  the 
record  itself,  and  should  he  assume  the  information  furnished  by 
index  entries  or  marginal  references  to  be  correct  he  does  so  at  his 
peril.^^ 

But  to  fix  the  liability  of  the  examiner  there  must,  as  a  rule, 
be  privity  of  contract  with  the  injured  party,  for  he  can  be  held 
answerable  for  his  errors  only  to  the  person  who  has  employed 
him,i2  and  where,  in  the  absence  of  fraud,  collusion  or  falsehood, 

7  So   held   where   the   examiner  had  8  Equitable  Bldg.   &  Loan  Assn.  v. 

omitted    to    note    on    the    abstract    a  Bank    of    Commerce,    118    Tenn.    678, 

judgment    against    the    property    for  102   S.  W.  901,  12   L.  R.  A.   (N.  S.) 

taxes,     and    its     subsequent    sale     to  449;    Heinseu  v.   Lamb,   117   111.   549, 

satisfy  same:      Chase   v.   Heaney,   70  7  N.  E.  75. 


111.  268;  and  where  a  pending  at 
tachment  suit,  which  afterward  cul 
minated  in  a  judgment,  was  omitted 
Security  Co.  v.  Longacre,  56  Neb.  469 
and  see,  Clark  v.  Marshall,  34  Mo 
429;  Bank  v.  Ward,  100  U.  S.  195 
Wakefield  v.   Chowen,  26   Minn.   379; 


9  Chase  v.  Heaney,  70  111.  268. 

10  Dundee  Mtg.  Co.  v.  Hughes,  20 
Fed.  Rep.  39;  Houseman  v.  Girard 
Loan  Ass'n,  81  Pa.  St.  256;  Schadc 
V.  Gehner,  133  Mo.  252;  Raiikiu  v. 
Schaeffer,  4  Mo.  App.  108. 

11  Wacek  v.  Frink,  51  Minn.  282. 


Smith  V.  Holmes,  54  Mich.  104.  12  Savings   Bank    v.    Ward,    100    U. 


d  ABSTRACTS   OF    TITLE.  [§  9 

the  examiner  has  made  an  erroneous  certificate,  upon  the  strength 
of  which  a  third  person  has  loaned  and  lost  money,  or  suffered 
other  injury,  no  liability  will  attach,  notwithstanding  the  fact  that 
the  money  was  advanced  on  the  assurances  of  the  abstract,  and  to 
the  person  who  had  caused  the  same  to  be  made.**  On  the  other 
hand,  the  owner  of  land  seldom  incurs  the  expense  of  procuring 
an  abstract  of  title  except  for  the  purpose  of  thereby  furnishing 
information  to  some  third  person  who  is  to  be  influenced  by  the 
information  thus  provided.  Hence,  it  is  contended,  if  the  abstract 
maker  shall  in  all  cases  be  held  responsible  only  to  the  person 
under  whose  employment  he  performs  the  service  it  is  manifest 
that  the  lass,  if  any,  occasioned  thereby,  must,  in  many  cases,  be 
without  remedy.  Acting  upon  this  line  of  reasoning  we  may  ob- 
serve a  tendency  in  some  of  the  eases  to  extend  the  abstracter's 
liability  and  to  give  to  anyone,  who  in  good  faith  relies  upon  the 
statements  of  the  abstract,  a  remedy  against  him  for  any  loss  that 
may  have  resulted  from  his  errors  or  omissions.**  The  general 
iiile,  however,  and  that  sustained  by  the  weight  of  authority,  is  us 
tirst  stated,  and  in  most  of  the  cases  that  may  seem  to  militate 
against  it  there  are  special  circumstances  tending  to  create  privity, 
or  such  other  relation  as  gives  to  the  injured  third  party  a  right  of 
redre-ss.** 

Where  a  cause  of  action  is  permitted  to  lie  against  an  abstracter 
who  has  furnished  an  erroneous  search  or  given  a  wrong  certificate 

S.  195;  Dundee  Mtg.  Go.  v.  Hughes,  party  directly  employing  the  ab- 
20  Fed.  Rep.  39;  Mechanics'  Bldg.  stracter,  into  pri\ity  with  his  con- 
Ass 'n  V.  Whitacre,  92  Ind.  547;  tract,  and  created  a  duty  to  him  as 
Houseman  v.  Bldg.  Ass'n,  81  Pa,  St.  well  as  to  his  immediate  employer. 
257;  Morano  v.  Shaw,  2.i  L.  A.  Auu.  14  Dickie  v.  Abstract  Co.,  89 
379.  Tenn.  431,  14  S.  W.  894;  Denton  v. 
13  Savings  Bank  v.  Ward,  100  U,'  Title  Co.,  112  Tenn.  320,  79  S.  W. 
S.  195;  Talpey  v,  Wright,  61  Ark,  799;  Gate  City  Abst.  Co.  v.  Post,  55 
275;  Schade  v.  Gehner,  133  Mo.  252.  Neb.  742,  76  N.  W.  471;  Goldberg  v. 
In  this  latter  case  the  examination  Title  Co.,  24  S.  D.  49,  123  N.  W.  266. 
having  been  made  for  a  purchaser,  In  each  of  these  two  latter  cases  a 
and  under  employment  by  him,  it  was  statute,  imposing  liability  for  dam- 
held  that  a  right  of  action  for  such  ages  to  any  person  who  might  be  in- 
negligence  did  not  exist  in  favor  of  jured,  influenced  the  decisions  of  the 
the  purchaser's  widow  and  sole  de-  courts.  See  also,  Crook  v.  Chilvers, 
visee  and  legatee.  The  court,  refer-  99  Neb.  684,  157  N.  W.  617;  Arnold 
ring  to  cases  cited  in  support  of  a  &  Co.  v.  Barner,  91  Kan.  768,  139 
contrary   view,  said   that   they  would  Pac.  404. 

be  found  to  hold  that  the  particular  16  As  where   a  lender,  before  mak- 

circumstances  of  those  cases  brought  ing  a  loan,  informs  the  abstract  maker 

the    party    injured,    though    not    the  that   he   will  rely  upon  the  abstract. 


§  9]  PRELIMINARY   OBSERVATIONS.  9 

of  title,  the  right  accrues  at  the  time  of  the  delivery  of  the  ab- 
stract and  not  at  the  time  the  negligence  is  discovered  or  the  con- 
sequential damages  may  arise.^^  Hence,  it  would  seem  that  the 
statute  of  limitations  may  be  pleaded  in  defense  when  the  statu- 
tory bar  has  intervened. 

It  has  further  been  held,  that  the  examiner  is  under  no  obliga- 
tion to  show  anything  not  arising  within  the  dates  of  his  examina- 
tion, even  though  it  be  at  the  time  a  valid  and  subsisting  lien  upon 
the  land;  nor  is  he  bound  to  inquire  or  state  whether  the  title 
vested  in  any  grantee  during  the  period  covered  by  his  examina- 
tion was  affected  by  any  prior  conveyance,  or  any  estoppel  grow- 
ing out  of  anj'  covenants  therein.^'' 

As  a  general  proposition,  it  may  be  said  that  the  relation  of  con- 
fidence which  subsists  between  parties  engaged  in  the  business  of 
making  abstracts  of  title  and  those  who  employ  them  is  not  unlike 
that  existing  between  attorney  and  client,  and  they  are  equally 
held  to  a  strict  responsibility  in  the  exercise  of  the  trust  and  con- 
fidence which  are  reposed  in  thera.^' 

With  respect  to  this  branch  of  our  subject  a  distinction  must 
further  be  kept  in  mind  between  persons  engaged  in  the  business 
of  compiling  abstracts  as  an  ordinary  occupation  and  public  officers 
who  furnish  same  as  a  part  of  their  official  duty.  Abstracts  are 
frequently  made  by  recorders,  clerks  and  prothonotaries,  and  in 
some  States  their  liability  is  prescribed  and  regulated  by  statute. 

and  is  told  by  the  latter  that  he  may.  money,   it   was   held  that   this   was   a 

Brown   v.    Sims,    22    Ind.    App.    317;  republication  of  the  certificate,  a  re- 

and  see  Slewers  v.  Commonwealth,  87  newal    and    delivery    thereof    to    the 

Pa.  St.  15,  where  it  was  said  that  for  lender,   and   that  the   officer   was   lia- 

the   accuracy  and  truthfulness   of  his  ble  for  his  negligence  in  the  search, 

search  and  certificate  a  prothonotary  16  Lattin    v.    Gillette,    95    Cal.    317, 

was   responsible    to    the    persons   who  and   see,   Bussell   v.   Abstract   Co.,   87 

employed   him   to   render   the   service,  Iowa,  233. 

and  not  to  others;   yet  where  the  cer-  17  Wakefield    v.    Chowen,    26    Minn, 

tificate  was  given  to  the  borrower,  but  379.    In  this  case  the  examiner  failed 

the    agent    of    the    lender,    not   being  to  show  a  judgment  rendered  against 

satisfied,  to  ascertain  whether  the  cer-  one    who   at    the    time    (prior   to    the 

tificate    was    correct    asked    the    pro-  commencement    of    the    examination) 

thonotary  whether  it  was  correct,  and  had  no  interest  in  the  subject  of  the 

the    latter    replied    that   it   was,    and  examination,   but    who     subsequently, 

took  the  certificate,  and  again  made  and  during  the  period  covered  by  the 

the    search,    and    returned    the    certi-  search,  acquired  title  to  the  same, 

fieate   to   said   agent,   saying   that   it  ISVallett©  v.  Tedens,  122  111.  607. 

wag  correct,  and  that  there  were  no  With   respect   to  the  liability  of   at- 

other  .iudgments,  and  the  agent  then,  torneys    for    erroneous    opinions,    see 

relying    on    the    certificate,    lent    tbc  Chap.  XXXII,  post. 


10  ABSTRACTS   OF   TITLE.  [§  9 

Under  those  statutes  such  officers  are  often  declared  liable  for  all 
loss  or  damage  which  may  happen  by  reason  of  any  false  or  er- 
roneous certificate  of  search,  not  only  to  the  person  or  persons  to, 
for.  or  upon  whose  order  the  said  certificate  was  made  or  given, 
but  also  to  any  person  claiming  title  through,  from  or  under  them, 
or  who  may  suffer  loss  by  reason  of  the  making  of  such  false  or 
erroneous  certificate.  But  where  an  officer  is  not  bound  to  make 
searches  of  the  records  of  his  office  his  liability  would  seem  to  be 
measured  by  the  same  rules  that  apply  to  abstracters  generally.*® 

§  10.  Character  of  Examiner's  Liability.  There  exists  some 
confusion  with  respect  to  the  character  of  the  liability  of  an  ex- 
aminer who  has  made  an  eiToncous  search  resulting  in  injury  to 
the  client,  as  well  as  to  the  remedies  that  may  be  resorted  to  in 
such  a  case.  The  better  opinion,  however,  and  that  Avhich  seems  to 
1)0  sup)ioi-tod  by  legal  reason,  is  that  such  liability  is  strictly  con- 
tractual, and,  notwithstanding  that  the  examiner  may  have  vio- 
lated a  duty  which  ho  owed  to  the  client,  and  that  such  violation 
was  nn  act  of  culpable  neglect,  yet  such  neglected  duty  was  alone 
imposed  by  the  contract  and  does  not  involve  a  tort  in  the  proper 
interpretation  of  that  term.^**  Upon  an  undertaking  of  this  kind 
the  examiner  owes  no  duty  to  the  client  apart  from  the  contract, 
and  the  fact  that  the  contractual  act  has  been  negligently  per- 
formed does  not  change  the  situation  or  alter  the  relation  of  the 
parties.^* 

§  11.  Duty  of  Furnishing  Abstract.  In  England  a  purchaser 
may.   it  seems,   require  to  be  furnished  with  ian  abstract  of  the 

19  Thus,  a  clerk  of  court,  not  be-  which  recites  that  the  abstracter  has 
ing  bound  to  make  searches  of  the  carefully  examined  the  records  of  the 
records  of  his  office  for  liens,  is  not  offices  of  the  county  clerk,  the  clerk 
liable  to  one  who  purchased  land  on  of  the  district  court,  and  the  county 
the  faith  of  his  certificate  errono-  treasurer,  and  that  there  were  of  rec- 
ously  stating  that  there  were  no  liens  ord  in  said  offices  no  liens  on  the  prop- 
against  it.  Mallory  v.  Ferguson,  50  erty  except  as  mentioned  in  the  ab- 
Kan.   685.  stract,   is   not  liable   on  his   bond  be- 

20  Thomas  v.  Guarantee  T.  &  T.  Co.,  cause  of  the  omission  from  the  ab- 
81  Ohio  St.  432,  91  N.  E.  183,  26  L.  stract  of  a  prior  mortgage  of  record 
R.  A.   (N.  S.)  1210.  in  the  office  of  the  register  of  deeds, 

81  Russell  V.  Abstract  Co.,  87  Iowa,  though  the  omission  was  the  result  of 

233,  and   see,   Thomas  v.   Carson,   46  a  conspiracy  to  defraud  between  the 

Neb.    765,   where   it   is   held,   that  an  abstracter,    the    mortgagor,    and    the 

abstracter     who     gives     an     abstract  prior  mortgagee. 


§  11]  PRELIMINARY  OBSERVATIONS.  11 

seller's  title,  even  though  he  may  have  already  agreed  to  accept 
the  same,  and  he  may  retain  such  abstract  during  the  negotiations 
upon,  and  even  after  rejection  of,  the  proffered  title,  until  the  dis- 
pute is  finally  settled,  for  the  purpose  of  showing  the  grounds  of 
such  rejectiou.22  It  will  be  remembered,  however,  that  an  English 
abstract  is  generally  only  a  digest  of  the  title  deeds  and  muniments 
relied  on  by  the  vendor  to  establish  his  claim,  and  which  invari- 
ably accompany  the  abstract  for  examination  and  comparison. 
The  abstract  so  furnished,  therefore,  is  rather  in  the  nature  of  a 
well-arranged  index  to  accompany  documents,  and  is  prepared 
primarily  for  their  more  convenient  and  systematic  perusal.  An 
American  abstract,  on  the  contrary,  is  intended  to  furnish  within 
itself  a  full  exposition  of  title,  and  to  obviate  the  necessity  of  re- 
ferring to  the  original  sources  of  information.  In  the  former  case 
the  deeds  and  muniments  are  in  the  hands  or  under  the  control  of 
the  vendor,  and  the  reason  of  the  English  rule  is  obvious  from  this 
fact  alone.  But  in  the  United  States  the  changed  conditions  of  the 
evidences  of  title,  the  system  of  registration,  the  actual  and  con- 
structive notice  imparted  thereby,  and  the  access  which  the  pur- 
chaser has  to  information  concerning  the  title,  would  seem  to  ren- 
der inoperative  the  English  rule  by  removing  the  reason  which 
occasioned  it ;  and,  while  it  is  customary  in  this  country,  as  in  Eng- 
land, for  the  vendor  to  prepare  and  furnish  an  abstract  of  title, 
either  pending  or  after  consummation  of  the  sale,  it  does  not  ap- 
pear that  this  can  be  demanded  as  a  matter  of  right,  but  is  rather 
the  result  of  the  contract  or  conditions  of  sale. 

In  England,  where  titles  are  not  registered,^^  the  vendor,  in 
order  to  show  performance  or  an  offer  to  perform  on  his  part, 
whether  in  an  action  at  law  for  the  purchase  money  or  a  suit  in 
equity  to  compel  performance  by  the  vendee,  must  affirmatively 
prove  his  title.  In  this  country,  where  titles  are  matters  of  record, 
and  at  all  times  open  for  inspection,  a  different  rule  prevails. 
This  doctrine  has  often  been  announced  in  actions  by  the  vendor 
for  the  purchase  mouey,^*  and  it  has  been  expressly  held,  in  equity, 
that  a  vendor  may  rely  upon  his  tender  of  conveyance  without 
producing  the  evidences  of  his  title,  the  burden  being  upon  the 

22  See    2    Sugd.    Vend.    *39 ;    Dart.  more  general  but  there   is  no  system 
Vend.    (Am.   Ed.)    130.  in   vogue  in  that  country   which   cor- 

23  Certain  kinds  of  deeds,  as  a  bar-  responds    with    that    observed    in    the 
gain  and  sale,  were  by  an  early  stat-  United  States. 

ute  required  to  be  "enrolled."     Of  24  Little   v.    Paddleford,    13   N.    H. 

late    years    registration    has    become      167. 


12  ABSTRACTS   OP   TITLE.  [§  11 

purehascr  to  show  sudi  a  dt^tVcl  as  would  justify  liim  in  refusing 
to  a»-c'Opt  the  deed.*' 

liut  while  the  furnishiiif;  of  an  abstract  cannot  J)e  said  to  be 
deraandable  as  a  matter  of  legal  right,  even  where  a  custom  to 
that  effect  may  prevail,  it  is  nevei-theless  made  a  condition  pre- 
cedent, in  most  sales,  by  the  express  agreement  of  the  parties. 
Where  parties  make  a  contract  for  the  sale  or  exchange  of  lands 
which  provides  for  the  exhibition  of  an  abstract  showing  title  in 
the  proposing  i)arties  by  a  day  named,  this  is  a  condition  precedent 
to  be  performed  before  either  party  in  case  of  an  exchange,  or  the 
vendor  in  case  of  sale,  can  call  upon  the  other  to  perform  the 
agreement ;  and,  if  the  abstract  is  not  satisfactory  or  fails  to  show 
the  title  agreed  to  be  made,  the  other  may  elect  to  consider  the 
contract  at  an  end.*^ 

If,  on  the  sale  of  land,  it  devolves  on  the  vendor  to  furnish  an 
abstract,  on  the  delivery  and  acceptance  of  the  deed  it  becomes 
the  property  of  the  purchaser,*"^  and  so,  where  the  owner  of  land, 
about  to  execute  a  mortgage,  delivers  to  the  mortgagee  an  abstract 
of  title  to  the  premises,  it  becomes  part  of  the  security  for  the 
loan,  and  the  mortgagor  is  not  entitled  to  the  possession  of  it  until 
the  mortprage  is  paid  or  discharged.'^* 

§  12.  Taxation  of  Abstract  Books.  Are  the  indices,  and  other 
books  of  the  examiner,  employed  by  him  in  the  preparation  of  ab- 
stracts, subject  to  taxation?  Unfortunately,  the  question  has  not 
received  a  uniform  answer  from  the  several  courts  to  which  it  has 
been  presented.  There  is  no  dispute  with  respect  to  the  general 
proposition  that  unpublished  manuscripts  are  not  subject  to  taxa- 
tion, but  the  difficulty  seems  to  lie  in  the  character  to  be  accorded 
to  such  manuscripts.  The  statute,  generally,  requires  that  all 
property  shall  be  returned  and  assessed  at  its  fair  cash  value,  ex- 
cept in  the  ca.se  of  specific  exemptions.  Abstract  books  are  cer- 
tainly property.  But,  it  is  said,  the  provision  of  the  statute  means, 
not  only  a  thing  that  may  be  put  to  valuable  uses,  but  that  which 
has  a  recognizable  pecuniary  value  inherent  in  itself,  which  is  not 
enhanced  or  diminished  according  to  the  person  who  owns  or  uses 
it.  Hence,  it  is  contended,  abstract  books  have  no  intrinsic  value. 
They  are  valuable  only  for  the  information  they  contain,  which  is 
conveyed  by  consultation  or  by  extracts,  and  such  value  is  main- 
tained only  by  their  completeness  and  continued  correction.     In- 

26  Espy    V.    Anderson,    14    Pa.    St.  27  Chapman  v.  Lee,  55  Ala.  616. 

308;  Daily  v.  Litchfield,  10  Mich.  38.  28  Holm  v.   Wust,   11    Ab.  Pr.    (N. 

2«  Howe  V.  Hutchison,  105  111.  501.       Y.)  N.  S.  113. 


§  13]  PRELIMINARY  OBSERVATIONS.  13 

defd,  exeej)1:  as  they  are  used  they  have  no  value. ^^  It  is  further 
held,  that  they  i-esemble  in  their  nature  the  books  whieh  are  con- 
sulted by  any  person  who  makes  an  income  from  his  acquired 
knowledge,  as  a  surveyor's  notes,  a  lawyer's  briefs,  a  druggist's 
recipes,  and  many  analogous  things.  Therefore,  while  they  may 
be,  and  are,  very  serviceable,  yet  thej^  are  not  things  which  the  law 
makes  subject  to  seizure  or  assessment.^® 

On  the  other  hand,  we  find  cases  which  hold  that  notwithstand- 
ing abstract  books  are  manuscripts  and  are  not  made  for  publica- 
tion in  the  general  sense,  and  which  concede  that  such  publication 
would  defeat  the  very  purpose  of  their  production,  yet  maintain 
that  they  are  the  means,  in  a  sense  the  instruments,  for  carrying 
on  a  business ;  that  they  have  a  commercial  value,  and  that  where 
a  commercial  value  attaches  to  an  object  it  becomes  property ;  that 
being  property  they  come  within  the  terms  of  the  statute,  and,  like 
other  property  not  specifically  exempt  are  subject  to  the  burdens 
of  taxation.^^ 

It  will  be  seen,  therefore,  that  the  question  is  one  of  doubt,  to 
be  solved  by  local  policj^  or  positive  law. 

§  13.  Exemption  of  Abstract  Books.  Analogous  to  the  ques- 
tion discussed  in  the  last  paragraph  is  the  further  question :  To 
what  extent,  if  any,  are  the  books  used  by  an  examiner  of  titles  in 
his  business  exempt  from  forced  sale  on  execution?  To  this  ques- 
tion no  decisive  answer  can  be  given.  It  is  entirely  a  matter  of 
local  law  and  statutory  construction.  In  those  States  where  the 
statute  exempts  the  necessary  tools  and  instruments  of  "any  per- 
son," used  in  his  trade  or  business,  or  by  other  general  terms  in- 
cludes all  kinds  of  occupations  and  the  means  whereby  such  occu- 
pations are  pursued,  the  books  of  an  abstract  maker  will  be  ex- 
empt.^2  On  the  other  hand,  in  those  States  where  the  exemption 
privilege  is  specifically  confined  to  certain  classes  of  occupations, 
unless  the  business  of  abstract  making  distinctly  falls  within  one 
of  the  enumerated  classes  the  books  used  in  such  business  are  not 
distinguishable  from  other  non-exempt  property,  and  may  be 
seized  and  sold  to  satisfy  a  judgment  against  the  owner.^^ 

29  Perry  v.  Big  Rapids,  67  Mich.  32  Davidson  v.  Sechrist,  28  Kan. 
146.  324. 

30  Dart  V.  Woodhouse,  40  Mich.  399 ;  33  See,  Tyler  v.  Coulthard,  95  Iowa, 
Perry  v.  Big  Rapids,  67  Mich.  146.  705;   Bank  v.  A))straet  Co.,  If5  Wash. 

31  Leon   Loan,   etc.,   Co.    v.    Equal i-  487. 
zation  Board,  86  Iowa,  127;  Booth  v. 
Phelps,  8  Wash.  549. 


CHAPTER  II. 


TITLE  TO   REAL   PROPERTY. 


U4. 

Estate  aud  title  distinguished. 

§21. 

Powers. 

§15. 

Acquisition  of  title. 

§22. 

Homesteads. 

§16. 

ClassLficatiou  of  title. 

§23. 

Dower  and  curtesy. 

§17. 

Sources  of  title. 

§24. 

Terms  of  years. 

§18. 

Nature  of   title  in  the  United 

§25. 

Easements  and  servitudes. 

States. 

§26. 

Color  of  title. 

§19. 

Estates  under  allodial  titles. 

§27. 

Evidence  of  title. 

§20. 

Uses  and  trusts. 

§28. 

Alienation  aud  descent. 

§  14.  Estate  and  Title  Disting^shed.  A  well  defined  and 
strongl}'  marked  distinction  has  been  made  by  the  elementary 
writers,  between  the  property  or  interest  which  one  has  in  lands, 
tenements  and  hereditaments,  and  the  authority  whereby  same  are 
held,  or  the  mode  by  which  they  are  acquired.  This  property  or 
specific  degree  of  interest  in  lands,  of  whatever  kind  or  nature,  is 
described  in  the  comprehensive  term  estate.  The  method  of  ac- 
quiring and  right  of  holding  same  is  denominated  title.  The  sub- 
ject of  estates,  with  their  quantities,  qualities,  extent  and  other 
attributes,  belongs  to  a  treatise  on  real  property,  and  will  be  al- 
luded to  in  this  work  only  as  they  incidentally  occur  in  treating  of 
the  manner  by  which  such  estates  are  acquired  or  held. 

In  the  paragraphs  immediately  following  a  brief  mention  will 
be  made  of  the  fundamental  principles  and  broad  specialized  rules 
which  affect  the  transfer  of  proprietary  rights  in  land  and  the 
devolution  of  title  thereto,  and  which  are  incidentally  involved 
in  the  compilation  of  abstracts  and  examination  of  titles. 

§  15.  Acquisition  of  Title.  It  may  be  stated  as  an  elementary 
proposition,  to  which  all  writers  and  jurists  agree,  that  there  exist 
but  two  modes  of  acquiring  title  to  real  property:  namely,  by 
descent  and  by  purchase,  the  latter  term  including  every  legal 
method  of  ac(iuisition,  except  that  by  which  an  heir,  on  the  death 
of  an  ancestor,  succeeds  to  the  estate  of  the  latter  by  operation  of 
law.^     The  common  law  estates  of  dower  and  curtesy  have  been 

12  Blk.  Com.  241;  James  v, 
Moore,  2  Cow.  290;  Green  v.  Blan- 
char,  40  Cal.  194. 

14 


§  16]  TITLE    TO   REAL   PROPERTY.  15 

regarded  by  some  writers  as  properly  coming  within  the  doctrine 
of  deseents,^  while  others  make  a  distinction,  in  respect  to  estates 
acquired  by  purchase,  between  titles  created  by  act  of  the  law,  and 
those  created  by  act  of  the  parties.^ 

§16.  Classification  of  Title.  Blackstone  makes  an  elaborate 
division  of  title  considered  in  relation  to  its  progressive  develop- 
ment, and  formulates  the  following  stages:  Naked  possession; 
right  of  possession ;  right  of  property  without  possession,  and  right 
of  property  united  with  possession.*  This  classification,  which  has 
been  followed  and  approved  by  most  English  and  many  American 
writers,  seems  needlessly  prolix  and  a  trifle  confusing.  Judge 
"Walker  in  alluding  to  it  says :  ' '  Such  refinements  serve  to  per- 
plex rather  than  inform  the  mind.  The  truth  is,  title  means  the 
same  thing  as  ownership.  A  man  may  be  in  possession  of  a  thing 
which  he  does  not  own,  and  he  may  own  a  thing  of  which  he  is  not 
in  possession,"  and  drag's  the  inference  "that  the  perfection  of 
title  consists  in  the  union  of  possession,  with  the  right  of  posses- 
sion."^ 

For  purposes  of  comparison  only,  titles  are  sometimes  classified 
as  bad,  doubtful,  good  and  perfect;  the  latter  being  also  known 
as  a  marketable  title,  or  one  which  a  court  of  equity  considers  so 
clear  that  it  will  enforce  its  acceptance  bj^  a  purchaser.  A  doubt- 
ful title  on  the  contrary  being  one  that  the  court  will  not  go  so 
far  as  to  declare  invalid,  but  only  that  it  is  subject  to  so  much 
doubt  that  a  purchaser  ought  not  to  be  compelled  to  accept  it.^ 
The  doctrine  of  marketable  titles  is  purely  equitable  and  of  mod- 
em origin;  at  law,  every  title  not  incurably  defective  is  market- 
able. It  must  be  distinctly  understood,  however,  that  the  fore- 
going classification  represents  merely  convenient  colloquialisms. 
The  law  knows  nothing  of  "good"  or  "bad"  titles.  In  fact,  they 
cannot  be  said  to  have  any  legal  existence.  Title  is  simply  title. 
A  person  is  without  title  or  he  has  title.  His  title  may  be  perfect 
or  impaired,  but  ' '  bad ' '  title  is  merely  a  vulgarism.  The  fact  that 
many  lawyers  employ  the  term  does  not  make  it  any  the  less  a 
vulgarism.  Nor  are  there  any  degrees  of  comparison  in  titles,  for 
"good"  title  suggests  a  "better,"  or,  possibly,  a  "best." 

A  more  pronounced  distinction  is  made  in  the  case  of  legal  and 
equitaUe   titles,   and   their   application  to   estates  is   of  frequent 

2  3   Cruise  Dig.  317.  5  Walker's  Am.  Law,  317. 

3  See  3  Wash.  Real  Prop.  4;  War-  6  2  Bou.  Law  Diet.  596-;  Richmond 
velle,  Real  Prop.  130.                                   v.  Gray,  3  Allen,  25. 

4  2  Blk.  Com.  195. 


16  ABSTRACTS   OF   TITLE.  [§  16 

occurrence  in  actual  practice.  Though  originally  applied  only 
to  estates  in  land,  tlio  terms  are  now  extensively  used  to  designate 
the  manner  of  ac(|uiring  and  holding  same  as  well.  The  e(|uital)lc 
title  usually  carries  with  it  the  beneficial  interest  in  the  land, 
together  with  the  incidents  of  ownership,  tlie  legal  title  being  held 
as  a  mere  naked  trust,  and  is  illustrated  in  the  relations  of  the 
government  and  a  purchaser  of  public  land  before  patent  issues; 
a  grantee  under  a  land  contract  after  payment  made  and  before 
execution  of  deed.  Where  a  trust  imposes  active  duties  on  the 
tru.stee  he  takes  the  entire  interest  in  the  land  and  the  beneficiarj' 
has  no  title  of  any  kind.  The  abstract,  as  a  rule,  shows  only  the 
legal  title,  unless  an  equitable  title  appears  from  the  recitals  of 
the  instruments  or  is  plainly  deducible  from  facts  appearing  on 
their  face. 

§17.  Sources  of  Title.  By  a  fiction  of  the  English  law,  the 
king,  as  the  head  and  sovereign  representative  of  the  nation,  is 
regarded  as  the  original  proprietor,  or  lord  paramount  of  all  the 
land  in  the  kingdom,  and  the  true  and  only  source  of  title.''  From 
him  all  the  lands  in  the  realm  are  held,  either  mediately  or  imme- 
diatel}',  by  a  tenure,  of  which  fealty  is  the  great  characteristic. 
I'nder  the  feudal  system  this  element  of  fealty  was  inseparably 
incident  to  the  reversion,  which  could  never  be  lost  to  the  ultimate 
lord. 

The  feudal  system  contemplated  a  prince — the  sovereign,  and 
the  people — the  subjects,  but  with  the  assumption  of  American 
independence,  the  people  in  their  collective  capacity  became  sov- 
ereign, and  as  such  succeeded  to  the  rights  and  prerogatives  for- 
merly possessed  by  the  king.  As  a  consequence  all  valid  individual 
title  to  land  in  the  United  States  is  derived  only  from  the  grant 
of  the  Federal  government,  in  the  case  of  public  lands;  from  the 
State  governments  of  such  of  the  States  as  entered  the  Union  as 
sovereign  bodies  possessed  of  lands ;  or,  from  foreign  powers  prior 
to  the  Revolution,  or  the  subsequent  acquisition  of  the  territory 
by  the  government,  the  vested  rights  of  the  land  owner  being 
recognized  in  the  latter  case  by  treaty  stipulations  at  the  time  of 
the  cession,  or  by  subsequent  confirmation.*  The  king  not  only 
possessed  the  original  but  also  the  ultimate  title,  an  assumption 
that  has  never  been  made  by  the  Federal  government,  which  parts 
with  all  its  title  by  its  grant  or  patent.    The  people  of  the  States, 

7  3  Kent  Com.  487;  2  Blacks.  Com.  graham,  4  Johns.  163;  Jackson  v. 
51.  Hart,   12  .Johns.   77. 

8 ;;  Kent  Com.  48S :  Jackson  v.  In- 


§  18]  TITLE   TO   REAL   PROPERTY.  17 

however,  in  their  sovereign  capacity,  are  declared  to  possess  the 
ultimate  property  in  and  to  all  lands  within  the  jurisdiction  of 
the  State,  the  title  to  which  shall  fail  from  defect  of  heirs,®  though 
the  character  in  which  the  State  takes  is  not  properly  that  of  a 
reversioner  but  rather  that  of  a  statutory  heir,  who  succeeds  to 
the  property  on  default  of  known  kindred  of  the  decedent.^'' 

§  18.  Nature  of  Title  in  the  United  States.  When  by  the  Revo- 
lution, the  domination  of  the  mother  country  was  thrown  off,  the 
State,  in  its  sovereign  capacity,  succeeded  to  the  titles  of  the  king 
and  became  the  proprietor  of  all  the  lands.^^  But  instead  of  lend- 
ing them  like  a  feudal  lord  to  an  enslaved  tenantry,  it  sold  them 
for  the  best  price  they  would  bring,  or,  with  more  than  princely 
generosity,  conferred  them  upon  its  citizens  as  a  reward  for  indus- 
try and  courage  in  the  development  and  settlement  of  the  country, 
or  in  recognition  of  valor  and  patriotic  devotion  in  its  defense. 
Its  patents  all  acknowledge  a  pecuniary  or  valuable  considera- 
tion, and  stipulate  for  no  fealty  or  other  feudal  incident.  "The 
State  is  lord  paramount  as  to  no  man's  land."^^  Though  here,  as 
in  England,  individual  ownership  in  lands  can  be  deduced  only 
from  the  sovereign — the  Crown,  the  ante-revolutionary,  United 
States,  or  State  governments, — yet,  when  so  acquired  it  is  held  in 
pure  and  free  allodium,  being  the  most  ample  and  perfect  interest 
that  can  be  obtained  in  land  and  denoting  a  full  and  absolute 
ownership  ;^^  "a  time  in  the  land  without  end"  i*  with  no  duties 
to  a  superior  lord,  or  services  or  fealty  incident  thereto.  The 
allegiance  which  the  citizen  owes  to  the  State  is  frequently  spoken 
of  as  fealty,^^  but  this  is  an  obligation  arising  from  political 
status,  and  is  as  binding  on  him  who  owns  no  land  as  on  him 
who  counts  his  acres  by  the  thousands.  It  is  an  obligation,  recip- 
rocal to  protection,  resulting  from  our  political  relations,  and  in 
no  way  affects  the  title  to  land  more  than  to  chattels.^*^ 

It  is,  however,  a  settled  principle,  growing  out  of  the  nature  of 
well-ordered   civil   society,   that   every   holder   of   property,   how- 

9  3  Kent  Com.  488;  People  v.  Liv-  13  1  Boii.  Law  Diet.  115;  1  Wasli. 
ingston,  8  Barb.  253.                                       Heal  Prop.  16. 

10  Wallace  v.  Harmstad,  44  Pa.  St.  14  Plowden,  555. 

492.  15  2     Bou.     Law     Diet.,     585     Art., 

11  Commonwealth  v.   Alger,  7  Gush.       "Tenure." 

82;    Johnson   v.   Mcintosh,    8   Wheat.  16  Wallace  v.    Harmstad,   44   Penn. 

584_  St.  492;  Carlisle  v.  United  States,  16 

12  Wallace   v.   Harmstad,   44    Penn.  Wall.  146. 
St.  492;   Van  Bansellaer  v.  Smith,  27 

Barb.  157. 

Warvelle  Abstracts — 2 


18  ABSTRACTS   OF   TITLE.  [§  18 

over  absolute  and  utKiiinlifii^d  may  l)e  his  title,  holds  it  under  the 
implied  liability,  that  its  use  may  be  controlled  and  regulated  by 
tlic  State  in  such  a  manner  as  not  to  interfere  Avith  the  equal 
enjoyment  by  others  of  their  property,  nor  be  injurious  to  the 
rijrhts  of  the  eommunity,^'  and  subjeet  to  such  laws  as  the  lepris- 
lature  may  enat*t  to  regulate  the  mode  of  eonveyance,  descent, 
right  of  dower  or  other  rights  growing  out  of  the  domestic  rela- 
tions.** All  pro]iorty  is  held  subjeet  to  those  general  regulations 
established  by  law,  which  are  necessary  to  the  common  good  and 
general  welfare. 

§19.  Estates  under  Allodial  Titles.  The  highest  estate  held 
by  an  allodial  title  is  called  a  fee  simple;  a  name  borrowed  from 
the  land  system  of  (ireat  Britain,  but  of  far  greater  import  hei-e 
than  there.  It  signifies  an  absolute  estate  of  inheritance,  clear 
of  any  restrictions  to  particular  heirs,  and  is  the  largest  estate 
and  most  general  interest  that  can  be  enjoyed  in  land,  being  the 
entire  property  therein,  and  confers  an  unlimited  power  of 
alienation.*® 

Though  usually  described  as  above,  the  estate  is  comprised  in 
the  word  "fee,"  the  addition  of  the  word  ''simple"  adding 
nothing  to  the  force  and  comprehensiveness  of  the  term.^''  A 
sale  of  the  fee  does  not  include,  in  the  term  itself,  a  sale  free 
from  incumbrances,  but  denotes  only  the  nature  of  the  estate 
as  distinguished  from  a  lessor  or  restricted  one,  and  land  may 
be  sold  in  fee  subject  to  incumbrances,  the  expression  involving 
no  inconsistency.^* 

The  fine  distinctions  of  the  English  law  in  respect  to  estates 
have  little  application  in  the  United  States,  and  the  American 
doctrines  on  this  subject,  though  regulated  by  statute  in  the 
different  States  and  hence  differing  some  in  detail,  are  com- 
paratively simple.  In  addition  to  the  fee,  or  inheritance,  we 
have  estates  for  life,  for  years,  at  will  and  by  sufferance.  The 
estate  in  fee  tail  is  practically  abolished,  the  entail  being  limited 
to  the  first  taker,  while  the  remainder  carries  the  fee.  Estates 
of  inheritance  and  for  life  are  generally  denominated  freeholds; 
estates  for  years,  chattels  real. 

17  Commonwealth  v.   Alger,  7  Cush.  20  Jecks  v.  Toussing,  45  Mo.  167. 
53;  Commonwealth  v.  Tewkesbury,  11  21  Caal    v.    Higgins,    23    N.    J.    Eq. 
Met.  55.                                                           308. 

18  Barker  v.  Dayton,  28  Wis.  367. 

19  Haynes    v.    Bourn,    42    Vt.    686 ; 
Warvelle,  R^eal  Prop.  70. 


§  20]  TITLE   TO   REAL   PROPERTY.  19 

With  respect  to  the  time  of  their  enjoyment,  they  are  further 
divided  into  estates  in  possession  and  in  expectancy;  the  latter 
being  again  divided  into  estates  commencing  at  a  future  day, 
called  future  estates,  and  reversions.  A  future  estate  is  one  lim- 
ited to  commence  in  possession  at  a  future  day,  either  with  or 
without  the  intervention  of  a  precedent  estate,  or  on  the  deter- 
mination, by  lapse  of  time  or  otherwise,  of  a  precedent  estate, 
created  at  the  same  time.  When  preceded  by  a  particular  estate 
they  are  generally  known  as  remainders. 

A  reversion  is  the  residue  of  an  estate  left  in  the  grantor  or 
his  heirs,  or  in  the  heirs  of  a  testator,  commencing  in  possession 
on  the  determination  of  a  particular  estate  granted  or  devised. 

Future  estates,  or  remainders,  are  also  classed  as  vested  or  con- 
tingent. They  are  vested  when  there  is  a  person  in  being  who 
would  have  an  immediate  right  to  the  possession  of  the  lands, 
upon  the  ceasing  of  the  intermediate  or  precedent  estate.  They 
are  contingent  while  the  person  to  whom  or  the  event  upon  which 
they  are  limited  to  take  effect,  remains  uncertain.  As  a  general 
rule  contingent  interests  are  assignable,  devisable  and  descendible 
the  same  as  vested  interests.^'' 

In  respect  to  the  number  and  connection  of  their  owners,  estates 
are  divided  into  estates  in  severalty,  in  joint  tenamcy  and  in  com- 
mon.^^  The  estate  in  joint  tenancy  has  now  become  very  infre- 
quent and  is  generally  confined  to  interests  held  by  a  number  of 
persons  as  trustees.  It  may  still  be  created,  however,  by  the 
employment  of  apt  words. 

As  a  rule,  every  conveyance  or  devise  of  lands  is  to  be  deemed 
a  fee  simple,  if  a  less  estate  is  not  limited  by  express  words,  or 
does  not  appear  otherwise  by  construction  or  operation  of  law,** 
and  future  estates  are  alienable  in  the  same  manner  as  estates 
in  possession,  by  deed  of  bargain  and  sale  without  covenants.*^ 

§  20.  Uses  and  Trusts.  The  ancient  doctrine  of  uses  and  trusts 
prevails  to  a  limited  extent  in  the  United  States,  though  its  effect 

22Kenyon   v.    See,    94   N.    Y.    563;  24  Leiter  v.   Sheppard,  85   111.   242. 

Winslow  V.  Goodwin,  7  Met.   (Mass.)  This  is  the  general  statutory  rule  but 

363.  in  a  few  States  the  old  eommonlaw 

23  Estates,    in    the    United    States,  ideas  seem  to  have  been  retained  and 

are   essentially   creations  of  the  stat-  a  grant  or  devise  without  words  of  in- 

ute,  preserving  a  general  harmony  in  heritance  creates  only  a  life  estate  in 

all  the  States,  but  frequently  widely  the  grantee.     See,   Pate  v.   Bushong, 

divergent     in     detail.       The     statute  161  Ind.  533. 

should    always    be    consulted    in    con-  26  Goodel  v.  Hibbard,  32  Mich.  47; 

struing  them.  Kenyon  v.  See,  94  N.  Y.  563. 


20  ABSTRACTS   OF   TITLE.  |  §  -0 

is  liy  no  inciuis  iiiiifoi-in.  A  majority  of  tlio  Slates,  following; 
the  t'xamplt'  of  New  \'^>vk.  have  abolished  i>assivo  ti-usts  wiii'ie 
the  li-iistcf  holds  only  the  nakcil  rorinai  tith'.  ihe  whoh'  hriit'ticial 
interest  lieinir  vested  in  tiie  i<'siiil.  que  trust,  the  statute,  in  sueh 
case,  (•ontirniin«r  to  llie  benetieiaiy  a  lef?al  estate  thei-ein  of  the 
same  (iiiali1\-  and  dni-ation,  and  snlijcct  lo  the  sanu'  cornlitions, 
as  his   lienetieial   interest. '^^ 

The  doctrine  of  result  injij  trusts  has  been  mucli  modifieti,  and, 
as  a  i-ul..  no  imi)lied  or  i-csulting  trust  is  effectual  to  defeat  or 
])re.judiee  the  title  of  a  purehaser  for  a  valuable  consideration, 
and  without  notice  of  sueh  trust. 

Express  trusts  are  usually  regulated  by  statute,  and  are  created 
for  the  sale  of  land  for  the  benefit  of  creditors,  legatees,  etc.,  or 
for  the  purpose  of  satisfying  any  charge  thereon ;  for  the  collec- 
tion  and  application  of  the  rents  and  profits  of  land;  and  for 
the  beneficial  interests  of  any  person  or  persons,  when  such  trust 
is  fully  expressed  and  clearly  defined  upon  the  face  of  the  instru- 
ment. Where  the  classes  of  express  trusts  are  specifically  enumer- 
ated by  statute,  the  creation,  for  any  purpose,  of  any  trust  not 
so  enumerated  vests  no  estate  in  the  trustee,  though  if  valid  as 
a  power  the  lands  to  which  the  trust  relates  remain  in  or  descend 
to  the  persons  otherwise  entitled,  subject  to  the  execution  of  the 
trust  as  a  power.  No  particular  form  of  words  is  necessary  to 
create  a  trust,  and  effect  will  always  be  given  to  the  intention 
of  the  parties.^''' 

§  21.  Powers.  Closely  allied  to  trusts,  and  partaking  some- 
what of  tiieir  nature,  are  powers,  the  creation,  constrnction  and  exe- 
cution of  which,  are,  in  a  majority  of  the  States,  governed  by  ex- 
press statutory  provisions.  A  power,  as  defined,  is  an  authority 
to  do  some  act  in  relation  to  lands,  or  the  creation  of  estates 
rherein,  or  of  charges  thereon,  which  the  owner  granting  or  re- 
serving .such  power  might  himself  lawfully  perforin,  and  no  per- 
son is  capable,  in  law,  of  granting  a  power,  who  is  not  at  the 
same  time  capable  of  alienating  some  interests  in  the  lands  to 
which  the  power  relates.  Powers  are  general  or  special,  and 
beneficial  or  in  trust.^^ 

A  power  is  general  when  it  authorizes  the  alienation  in  fee, 

26  The    above    statements    are    sub-  in  all  the  States:    4  Kent's  Com.  ."!08; 

stantially  true  of  all  the  States  whose  Yerclin  v.  Slocuin,  71  N.  Y.  345. 

procedure   is  the  same   as,   or  similar  27  Fisher  v.  Fields,  10  Johns.   495; 

to,   the   X.   Y.    Revision,   and   convey-  Savior  v.  Plaine,  .31  Md.  158. 

ances   U)   use   are   generally   abolished  28  Kent    Com.    .319;     2     Bou.    Law 


§  22]  TITLE   TO   REAL   PROPERTY.  21 

by  deed,  will,  or  charge  of  the  lands  embraced  in  the  power,  to 
any  alienee  whatever;  and  is  a  simple  form  of  familiar  occur- 
rence. It  is  special,  when  the  appointee  is  designated;  or  where 
it  authorizes  a  conveyance  of  a  particular  estate  or  interest  less 
than  a  fee.  A  general  or  special  power  is  beneficial,  when  no 
person  other  than  the  grantee,  has,  by  the  terms  of  its  creation, 
any  interest  in  its  execution.  A  general  power  is  in  trust,  when 
any  person,  other  than  the  grantee,  is  designated  as  entitled  to 
the  proceeds,  or  other  benefits  to  arise  from  the  alienation  of  the 
lands.  A  special  power  is  in  trust,  when  the  disposition  which 
it  authorizes  is  limited  to  be  made  to  any  particular  persons  other 
than  the  grantee;  or  when  any  class  of  persons,  other  than  the 
grantee,  is  entitled  to  any  benefit  from  the  disposition  or  charge 
authorized  by  the  power. 

A  power  may  be  granted  by  a  suitable  clause  contained  in  the 
instrument  of  conveyance  of  some  estate  in  the  lands  to  which 
same  relates,  or  by  devise  contained  in  a  last  will  and  testament, 
and  may  be  vested  in  any  person  capable  in  law  of  holding  lands, 
but  cannot  be  executed  by  a  person  not  capable  of  alienating  lands 
holden  by  such  person. 

A  power,  technically  speaking,  is  not  an  estate,  but  is  a  mere 
authority,  enabling  a  person,  through  the  medium  of  the  statute, 
to  dispose  of  an  interest  in  real  property,  vested  either  in  himself 
or  in  another  person,^^  and  where  a  power  is  executed,  the  person 
taking  under  it  takes  under  him  who  created  the  power,  and  not 
under  him  who  executes  it.^® 

A  power  to  sell  land  can  only  be  exercised  in  the  manner  and 
for  the  precise  purpose  declared  and  intended  by  the  donor,  and 
when  the  purpose  becomes  wholly  unattainable,  the  power  ceases.^^ 
In  the  construction  of  powers,  the  intention  of  the  parties,  if  com- 
patible with  law,  must  govern;  and  the  intention  is  to  be  deter- 
mined from  the  instrument  creating  the  power.^^ 

§  22.  Homesteads.  The  statutes  of  all  the  States  have  injected 
into  the  law  of  real  property,  as  applied  in  this  country,  a  new 
quality,  unknown  to  the  common  law,  denominated  "homesteads." 

Diet.    356.      The    classification    above  30  Legget  v.  Doremiis,  25  N.  J.  Eq. 

given  is  that  which  is  now  generally  122. 

observed    in    this    country,    though    it  31  Hetzel  v.   Barber,  69  N.  Y.   1. 

differs    somewhat    from    the    common  32(!uion   v.    Pickett,    42    Miss.    77; 

law  classification.  Jackson  v.  Veeder,  11   Johns.  169. 

29  Burleigh    v.    doughs,    52    N.    H. 
268;  2  Brest.  Abstracts,  275. 


22  ABSTRACTS   OP   TITLE.  |  §  22 

Tlie  homestead  is  usually  a  t'Oiistitutioually  guaranteed  right  an- 
nexed to  land,  vvhereb\  the  same  is  exempted  from  sale  under  exe- 
I'Ution  for  debt.  No  uniform  rule  can  be  given  for  its  ascertain- 
ment, it  being  variously  measured  either  by  a  definite  money  value, 
or  a  specific  area  of  land.  Nor  can  any  general  definition  of  its 
character  be  given  other  than  the  above,  as  the  authorities  are  by 
no  means  harmonious  in  prescribing  its  limits,  or  defining  its  effect. 

In  some  of  the  IStates  the  homestead  is  an  estate,^^  limited  only 
as  to  its  value,  and  not  by  any  specific  degree  of  interest  or  char- 
acter of  title  in  the  particular  property  to  which  it  attaches,  and 
when  the  worth  of  the  property  does  not  exceed  the  statutory 
valuation,  the  estate  embraces  the  entire  title  and  interest  of  the 
householder  therein,  leaving  no  separate  interest  in  him  to  which 
liens  can  attach  or  which  he  can  alien  distinct  from  the  estate  of 
homestead.^*  Such  estate  has  also  been  regarded  as  a  determin- 
able fee.^^ 

The  right  of  homestead,  in  a  majority  of  the  States,  is  held  to 
be  but  a  privilege  of  occupancy  against  creditors,^^  the  continu- 
ance of  which  depends  upon  the  continuance  of  prescribed  condi- 
tions.^' When  once  acquired  it  is  a  vested  right,^*  though  it  seems 
it  may  be  impaired  by  subsequent  legislation,^®  and  can  be  lost 
only  by  abandonment.*"  The  homestead  law  does  not  vest  in  the 
owner  any  new  rights  of  property  but  simply  imposes  restrictions 
on  the  creditor  in  seeking  satisfaction  for  his  debt,*^  and  the  pro- 
tection afforded  by  it  attaches  to  an  equitable  title  with  the  same 
force  as  to  the  legal  title.*^  Where  there  is  an  abandonment,  with 
a  fixed  intention  not  to  return,  the  homestead  may  be  subjected  to 
the  demands  of  creditors,  but  the  question  is  almost  exclusively 
one  of  intent,  and  absence  for  an  indefinite  period  is  not  sufficient 
to  establish  the  fact  of  an  abandonment,  unless  accompanied  with 
proof  of  intent  not  to  return.'*^ 

In  every  State  special  restrictions  have  been  placed  on  the 
alienation  of  the  homestead,  it  being  in  contemplation  of  law  the 
last  retreat  and  shelter  of  the  family;  and  though  its  sale  is  per- 

33Littlejohn   v.   Egerton,  77  N.   C.  38  Barret  v.  Messner,  30  Tex.  604; 

379;   Eldridge  v.  Pierce,  90  111.  474;  Barber  v.  Roarbeck,  36  Mich.   399. 
Jenkins  v.  Volz,  54  Tex.  636.  39  Harris  v.  Glenn,  56  Ga.  94. 

34Merritt  v.  Merritt,  97  111.  243.  40  Carr  v.  Rising,  62  III.  14;   Crook 

86Poe    V.    Hardie,    65    N,    C.    447;  v.  Lunsford,  2  Lea  (Tenn.)  237. 
Haslam  v.  Campbell,  60  Ga.  650.  41  Bank  v.  Green,  78  N.  C.  247. 

36Brame  v.  Craig,  12  Bush   (Ky.),  42  Allen    v.    Hawley,    66    111.    164; 

404;    Casebolt   v.   Donaldson,    67   Mo.  Smith  v.  Chenault,  48  Tex.  455. 
308;  Drake  v.  Kinsell,  38  Mich.  232.  43  McMillan  v.  Warner,  38  Tex.  410; 

87  Hill  V.  Franklin,  54  Miss.  632.  Potts  v.  Davenport,  79  111.  455. 


§  23]  TITLP   TO   REAL.   PROPERTY,  23 

mitted  the  voluntary  act  of  either  husband  or  wife,  or  both,  would 
be  ineffectual  for  that  purpose,  except  in  the  manner  provided  by 
statute,**  and,  as  a  rule,*  the  alienation  of  homestead  property  by 
either  spouse  without  consent  of  the  other  is  an  absolute  nullity, 
the  purchaser  acquiring  no  title  whatever.*^  When  a  party  derives 
title  to  property  in  good  faith,  and  in  the  prescribed  methods, 
through  one  who  has  a  homestead  right  therein,  he  will,  it  seems, 
succeed  to  his  grantor's  rights,  and  take  the  property  exempt  from 
his  grantor's  debts.*^  In  many  examinations  the  questions  raised 
with  respect  to  homesteads  are  very  important. 

§  23.  Dower  and  Curtesy.  One  of  the  common  law  incidents 
of  real  property  is  dower,  being  that  provision  which  the  law 
makes  for  a  widow  out  of  the  lands  or  tenements  of  her  deceased 
husband,  for  her  support  and  the  nurture  of  her  children.*''^  The 
common  law  right  of  dower  no  longer  exists,  however,  in  a  ma- 
jority of  the  States,  the  rights  of  the  surviving  wife  in  the  real 
estate  of  her  deceased  husband  being  those  created  by  statute  alone, 
and  questions  arising  upon  them  must  be  determined  solely  by 
reference  to  the  statute.*®  No  uniform  measure,  either  as  to  quan- 
tity or  quality,  has  been  adopted,  but  in  the  main  the  estate  con- 
ferred conforms  to  that  of  the  common  law  and  consists  of  the  use 
by  the  widow,  during  her  life,  of  one-third  part  of  all  the  lands 
whereof  her  husband  was  seized  of  an  estate  of  inheritance  at  any 
time  during  the  marriage. 

During  the  lifetime  of  the  husband,  the  wife  has  only  an  in- 
choate right,  which  is  not  an  estate  in  the  land  but  a  mere  con- 
tingent interest  that  attaches  to  the  land  as  soon  as  there  is  the 
concurrence  of  marriage  and  seizin.  This  interest  becomes  fixed 
and  certain  upon  the  death  of  the  husband,  and  after  the  assign- 
ment of  dower  develops  into  a  freehold  estate  in  land.*^  During 
the  marriage  no  act  of  the  husband  alone  could,  at  common  law, 
bar  or  extinguish  this  interest,  which  in  England  was  accomplished 
only  by  levying  a  fine  or  suffering  a  common  recovery .^'^     In  the 

44Fiege    v.    Garvey,    47    Cal.    471;  474;    Leupold  v.   Kruse,   95   111.   440; 

Balkum  v.  Wood,  58  Ala.  642.  Carhart  v.  Harshaw,  45  Wis.  340;  Hol- 

46Eogers  v.  Eenshaw,  37  Tex.  625;  land  v.  Krcider,  86  Mo.  59. 

Abell   V.   Lathrop,   47   Vt.   375;    Bar-  47  2  Black.  Com.  130;  4  Kent  Com. 

nett    V.    Mendenhall,    42    Iowa,    296;  35. 

Kichards  v.  Green,  73  111.  54;  Bank  v.  48Gayloid  v.  Dodge,  31  Ind.  41. 

Lyons,  52  Miss.  181;   Miller  v,  Marx,  40  Elmdorf  v.   Lockwood,  57  N.   Y. 

55  Ala.  322.  322. 

46  Shackelford   v.   Todhunter,  4   111.  60  2    Black.    Corn.    i;57;     4    Kent's 

App.  271;   Adrian  v.  Shaw,  82  N.  C.  Com.  51. 


24  ABSTRACTS   OP   TITLE.  [§23 

United  States  a  woniaii  may  be  harrcd  of  her  dower  by  jointure 
settled  on  hor  l)eforc  marriage,  or  ])y  joining  with  lior  husband 
in  a  deed  of  conveyance,  properly  acknowledged.^^ 

Before  dower  has  been  assigned,  it  can  be  released  only  to  the 
owner  of  the  fee,  or  to  some  one  in  privity  with  the  title  by  his 
covenants  of  wari-anty.  But  where  the  former  owner  of  the  fee 
in  land  in  wliich  dower  rights  still  exist,  has  conveyed  the  same 
with  warranty,  he  may  purchase  the  right  for  the  benefit  of  his 
grantee,  however  I'emotc,  and  thus  prevent  a  breach  of  the  cove- 
nants.^^ 

The  release  of  dower  which  a  married  woman  makes  by  joining 
with  her  husband  in  a  conveyance  of  his  land,  operates  against 
her  only  by  estoppel,  and  can  be  taken  advantage  of  only  by  those 
who  claim  under  that  conveyance,*^  and  if  the  conveyance  is  void, 
or  ceases  to  operate,  she  is  again  clothed  with  the  right  which  she 
had  released. 

During  coverture,  the  wife's  inchoate  right  of  dower  is  incap- 
able of  being  transferred  or  released,  except  to  one  who  has  al- 
ready had,  or  by  the  same  instrument  acquires  an  independent 
interest  in  the  estate.**  The  right  is  not  such  an  estate  as  can  be 
leased  or  mortgaged,"  neither  can  a  married  woman  bind  herself 
personally  by  a  covenant  or  contract  affecting  her  right  of  dower 
during  the  marriage.  Hence,  a  deed  executed  by  husband  and 
wife  with  a  covenant  of  warranty,  does  not  estop  the 
wife  from  setting  up  a  subsequently  acquired  title  to  the  same 
lands.*^  The  inchoate  right  of  dower  not  being  the  subject  of 
conveyance  in  any  of  the  usual  forms  by  which  real  property  is 
transferred,  and  the  doctrine  of  estoppel  by  which  subsequently 
acquired  titles  are  made  to  inure  to  the  benefit  of  former  grantees 
being  inapplicable,  it  follows  that  a  grantee  or  mortgagee  claim- 
ing under  an  instrument  executed  by  a  woman  during  coverture 
acquires  no  title  or  interest  in  the  dower  of  the  grantor  or  mortga- 
gor when  the  estate  becomes  absolute,  whether  dower  has  been 
assigned  or  not.*''^  But  in  all  cases  where  the  wife  unites  with  her 
husband  in  a  conveyance,  properly  executed  by  her,  which  is  ef- 

614    Kent    Com.    60;     Elmdorf    v.  56  Croade  v.  Ingraham,  1.3  Pick.  :{:;. 

Lockwood,  57  N.  Y.  322.  66  Jackson     v.     Vandcrheydon,     17 

62  La   Framboise    v.    Crow,    56    111.       Johns.  167. 

197.  67  Marvin  v.  Smith,  46  N.  Y.   571; 

63  Malloney  V.  Horan,  49  N.  Y.  Ill;  Carson  v.  Murray,  ?>  Paige,  483.  It 
Lockett  V.  James,  8  Bush  (Ky.),  28;  will  be  understood  that  the  statement 
French  v.  Crosby,  61  Me.  502.  of  the  text  has  no  reference  to  lands 

54  Robinson  v.  Bates,  3  Met.  40;  held  by  a  married  woman  in  her  own 
Tompkins  v.  Fonda,  4  Paige,  448.  right. 


§  24]  TITLE   TO   REAL   PROPERTY.  25 

fectual  and  operative  against  the  husband  and  which  is  not  super- 
seded or  set  aside  as  against  him  or  his  grantee,  her  right  of  dower 
is  forever  barred  and  extinguished,  for  all  purposes  and  as  to  all 
persons.** 

Tenancy  by  the  curtesy  has  been  generally  abolished  and  the 
husband  takes  a  statutory  allowance  from  the  deceased  wife's 
estate,  the  quantity  and  quality  varying  in  the  different  States. 
Tenancies  in  dower  or  curtesy  stand,  like  all  other  estates  of  free- 
hold for  life,  necessarily  subjected  to  the  charges,  duties  and  serv- 
ices to  which  the  estate  may  be  liable,  in  proportion  to  the  interest 
therein. ^^  In  the  examination  of  titles  dower  is  an  important  inci- 
dent and  always  raises  an  inquiry  in  every  conveyance  not  of  an 
official  nature. 

§24.  Terms  of  Years.  Next  to  a  fee  simple,  the  most  common 
estate  known  to  our  law  is  an  estate  for  years,  being  a  right  to,  or 
contract  for,  the  possession  and  profits  of  lands  in  consideration  of 
a  recompense,  called  rent.^®  Estates  for  years,  for  life,  and  at  will 
or  by  sufferance,  are  frequently  called  "tenancies,"  because  the 
holders  thereof  are  regarded  as  mere  occupants,  while  the  ulti- 
mate title  remains  in  the  proprietor  of  the  fee.  This,  however,  is 
not  strictly  exact,  as  every  owner  of  an  estate  is,  in  law,  a  tenant, 
that  is,  a  holder,  without  reference  to  the  quantity  or  quality  of 
the  interest.  But  in  common  parlance  the  owners  of  leasehold  in- 
terests are  generally  called  tenants  as  distinguished  from  owners 
of  indeterminate  interests  or  estates. 

In  estates  for  years,  the  time  as  well  as  the  estate  itself  are  both 
called  a  term.  Such  an  estate  is  not  properly  an  interest  in  the 
land,  but  only  a  right  to  the  use  and  possession  thereof  for  a 
definite  period,  hence  a  tenant  is  not  said  to  be  seized  of  the  land, 
but  only  possessed  of  the  term.  The  estate  is  of  frequent  occur- 
rence in  the  examination  of  titles,  and  often  rivals  in  dignity  and 
importance  the  fee  itself.  It  is  created  by  an  instrument  called  a 
lease,  and  is  terminated  by  its  own  limitation;  by  forfeiture,  in 
consequence  of  a  breach  of  some  express  stipulation  or  covenant; 
or  by  operation  of  law,  termed  a  merger,  where  the  tenant  by  any 
means  becomes  seized  of  the  fee  of  the  reversion.  The  tenancy 
may  also  be  terminated  by  a  surrender  of  the  lease  to  the  landlord, 
or  where  the  subject-matter  of  the  lease  wholly  perishes.  The 
tenant  is  never  permitted,  for  reasons  of  sound  public  policy,  to 
controvert  his  landlord's  title,  noi-  to  set  up  against  him  a  title 

SSElmdorf   v.  Lockwood,   57   N.   Y.  59  Poyton  v.  Jeffries,  50  111.  143. 

322.  60  4  Cruise,  Dig.  51. 


26  ABSTRACTS  OF   TITLE.  [§  25 

acquired   by  liimself  durinf?  his  tenancy  which   is  hostile   in   its 
character  to  that  which  he  acknowledged  in  acceptinj^  the  demise. 

§25.  Easements  and  Servitudes.  An  easement  has  been  de- 
fined as  "a  right  in  the  owner  of  one  parcel  of  land,  by  reason  of 
such  ownership,  to  use  the  land  of  another  for  a  special  purpose 
not  inconsistent  with  a  general  property  in  the  owner, "^^  This 
perhaps,  is  as  good  a  definition  as  can  be  framed.  Easements  are 
as  various  as  the  exigencies  of  domestic  convenience  or  the  pur- 
poses to  whirii  buildings  and  land  may  be  applied,  and  are  created 
by  grant,  confirmation,  reservation  or  prescriptive  user.  The 
owner  in  fee  of  land  may  impose  upon  it  any  burden,  how^ever  in- 
jurious or  destructive,  not  inconsistent  with  his  general  right  of 
ownership,  if  such  burden  be  not  in  violation  of  public  policy  and 
does  not  injuriously'  atfect  the  rights  or  property  of  others.^^ 

An  easement  may  be  created,  or  reserved  bj'  an  implied  grant, 
when  its  existence  is  necessary  to  the  enjoj-meut  of  that  which  is 
expressly  granted  or  reserved,  upon  the  principle  that,  where  one 
gi-ants  anything  to  another,  he  thereby  grants  him  the  means  of 
enjoying  it,  whether  expressed  or  not,^^  but  easements  exist  as  ap- 
purtenant to  a  grant  of  lands  only  b}^  reason  of  a  necessity  to  the 
full  enjoyment  of  the  property  granted.^*  Nothing  passes  by  im- 
plication, or  as  incident  or  appurtenant,  except  such  rights  or 
privileges,  as  are  directly  necessary  to  the  proper  enjoyment  of 
the  granted  estate,  and  the  necessity  measures  the  extent  and  dura- 
tion of  the  right.  When  the  necessity  ceases,  the  rights  resulting 
from  it  cease.*^  It  must  be  an  actual  and  a  direct  necessity.  A 
mere  convenience  is  not  sufficient  to  create  or  convey  a  right  or 
easement,  or  impose  burdens  on  lands,  other  than  those  granted, 
as  incident  to  the  grant.^^  When  established,  however,  an  ease- 
ment of  necessity  passes  with  each  successive  transfer  of  the  title 
to  the  dominant  estate,  whether  voluntary  or  involuntary.®' 

Easements  of  necessity,  when  the  title  to  the  dominant  estate 
and  to  the  servient  estate  unite  in  a  common  owner,  are  merged 
and  lost.     On  separate  conveyances  of  the  estates  by  the  common 

61  Wash.  Keal  Prop,  25;  Meek  v.  65  Hancock  v.  Wentworth,  5  Met. 
Breckenridge,  29  Ohio  St.  642.  446;  Carey  v.  Rae,  12  Rep.  523. 

62  Van  Rensselaer  v.  R.  R.  Co.,  1  66  Ogden  v.  Jennings,  62  N.  Y.  526 : 
Hun  (X.  y.),  507.  Holmes  v.  Seely,  19  Wend,  507;  War- 

68  Lanier   v.   Booth,   50   Miss,   410;  ren  v,   Blake,  54  Me.   276;    Carey   v. 

Pingree   v.    McDuffe,   56   N.   H.   306;  Rae,  12  Reporter,  523. 

Dillman  v,  Hoffman,  38  Wis.  559.  67  Proudf oot    v.    Saffle,    62    W,    Va, 

64Woodworth  v.  Raymond,  51  Conn,  51,  57  S.  E,  256,  12  L.  R.  A,   (N.  S.) 

70.  482. 


§  26]  TITLE   TO   REAL   PROPERTY.  27 

owner,  such  easements  are  not  revived,  nor  treated  as  having  ex- 
isted during  the  time  the  two  estates  were  in  the  common  owner, 
but  are  re-created  by  the  conveyance  of  the  estates  separately,  and 
arise  from  the  application  of  the  rule  above  stated.^* 

In  respect  to  the  acquisition  of  easements  by  user,  no  universal 
rule  of  law  as  to  the  effect  of  evidence  of  particular  facts  can  be 
laid  down,  and  when  established  by  prescription,  or  inferred  from 
user,  such  easements  are  limited  to  the  actual  user.  A  right 
claimed  by  user  is  only  co-extensive  with  the  user.^®  Open  and 
continuous  use,  without  hindrance  or  objection,  for  more  than 
twenty  years  will  generally  establish  an  easement  by  prescrip- 
tion."^o 

Special  easements  are  created  by  grant  or  confirmation,  or  may 
be  reserved  by  special  reservation  in  a  conveyance  of  lands,  and 
easements  created  in  this  manner  do  not  cease,  even  though  the 
necessity  for  them  may  have  ceased.'^ 

A  license  is  an  authority  to  enter  upon  the  lands  of  another  and 
do  a  particular  act  or  series  of  acts,  without  possessing  any  interest 
in  the  land.  A  claim  for  an  easement  must  be  founded  upon  a 
grant,  by  deed  or  writing,  or  upon  prescription  which  presupposes 
a  grant,  for  it  is  a  permanent  interest  in  another's  land;  but  a 
license,  conveying  no  estate  or  interest,  may  be  by  parol.  It  is 
founded  in  personal  confidence,  is  not  assignable,  and  if  executory 
is  revocable  at  the  pleasure  of  the  grantor.  The  distinction,  how- 
ever, is  quite  subtle,  and  it  becomes  difficult,  in  many  cases,  to  dis- 
cern a  substantial  difference  between  them.'''^ 

In  the  examination  of  titles  easements  of  record  are  readily 
ascertained,  but,  as  an  easement  may  exist  without  an  express 
grant,  the  attention  of  clients  should  always  be  directed  to  the  inci- 
dents, situation  and  condition  of  the  land,  and  particularly  to  the 
rights  of  persons  in  possession  or  exercising  acts  of  ownership. 

§  26.  Color  of  Title.  A  title  may  be  actual  or  merely  colorable. 
A  person  is  properly  said  to  have  color  of  title  to  lands  when  he 
has  an  apparent  though  not  a  real  title  to  the  same,  founded  upon 
a  deed  which  purports  to  convey  them  to  hira,''^  and  a  claim  to 

68  Miller  v.  Lapham,  44  Vt.  416.  71  Atlanta     Mills     v.     Mason,     12U 

69  Brooks    v.    Curtis,    4    Lans.    (N.       Mass.  244. 

Y.)   283.  72Mumford  v.   Whitney,   15   Wend. 

70  Mann  v.  Reigler,  33  Ky.  L.  744,  380;  Thompson  v.  Gregory,  4  Johns. 
Ill   S.  W.  300,  18  L.  R.  A.    (N.  S.)       81;  3  Kent  Com.  452. 

131;   Barry  v.   Edlavitch,   84  Md.   95,  73  Seigneuret    v.    Fahey,    27    Minn. 

35  Atl.  170,  33  L.  R.  A.  294.  60;  Rigor  v.  Frye,  62  111.  507. 


28  ABSTRACTS   OP   TITLE.  [§  26 

i-cal  propcity  iiinlcr  sucli  a  conveyance,  liowever  inadequate  it 
may  he  to  can-y  tlie  true  title,  or  however  incompetent  the  grantoi' 
may  he  to  convey  sudi  title,  is  strictly  a  claim  nnder  color  of  title. "'^^ 
Possession  under  color  of  title  for  the  period  of  stattitory  limita- 
tion, confei's  upon  the  holder  a  perfect  title  in  law,  and  where  one 
takes  possession  nnder  a  deed  friviii^  color  of  title,  his  possession 
may  be  transferred  to  sid)se(|neiit  parties,  and  the  poss(>ssion  of 
tlic  different  holders  may  lie  nnited  so  as  to  make  up  the  statutory 
period,  the  operation  heing  technically  called  tacking?^  Titles 
acquired  in  this  manner  must,  however,  show  connected  possession, 
and  a  i)i'ivity  of  tyrant  or  descent.  Those  who  hold  lands  inde- 
l)cndently  of  ]n-evious  holders,  their  several  possessions  having  no 
connection,  cannot  so  tack  their  possession  as  to  avail  themselves 
of  that   which  has  gone  before. ''^^ 

§  27.  Evidences  of  Title.  There  is,  strictly  speaking,  but  one 
species  of  title  to  lands,  and  that  tlie  legal  title.  Individuals  may 
possess  equities  of  recognized  potenc\-,  l)ut  such  equities,  after  all, 
do  not  constitute  title,  although  they  may  carry  with  them  the 
light  to  the  title  and  the  entire  beneficial  interest.  Courts  of 
c(|uity  may  grant  relief  to  the  holdei-s  of  such  equities,  but  at  law 
the  legal  title  must  always  prevail."''''^ 

A  sale  of  real  property,  whether  judicial  or  voluntary,  does  not 
pass  title,  but  only  gives  a  right  to  a  conveyance  of  the  land  ac- 
cording to  the  terms  of  sale,'*  and  the  purchaser  cannot  be  treated 
as  the  legal  owner  of  the  property,  until  it  has  been  duly  trans- 
fen-ed  to  him  by  a  deed  executed  by  proper  authority. '^  The  evi- 
dences of  legal  title  consist  of  voluntary  grants  by  the  sovereign, 
or  individual ;  conveyances  resulting  from  judicial  proceedings,  or 
made  in  the  exercise  of  the  taxing  ]Hiwer  of  the  State;  deeds  exe- 
•Mited  by  trustees  or  other  ministerial  officers;  regular  descents  in 
tiie  manner  provided  by  law;  or  continuous  possession  which  pre- 
snpposes  some  one  of  the  other  methods. 

§28.  Alienation  and  Descent.  The  Cojistitutimi  of  the  United 
States  declares  that  Congress  shall  have  i)ower  to  dispose  of  and 
make   all   needfid   rules   and   regulations   respecting   the   territory 

74  Edgcrton    v.    Bird,    6    Wis.    527;  78  Semple    v.    Bank,    5    Sawyer    (C. 

llinkley  v.  Greene,  52  111.  22.3.  Ct.)    394. 

76  Cooper  V.  Ord,  60  Mo.  420.  79  Page    v.    Rogers,    .31    Cal.    294; 

76  Crispen  v.  Hannavan,  50  Mo.  536.  Smith  v.  Colvin,  17  Barb.  157. 

77  Bagnel  v.  Broderick,  13  Pet.  436; 
Fenn.  v.  Holme,  21  How.  481. 


§  28]  TITLE    TO    REAL    PROPERTY.  29 

and  other  property  belonging-  to  the  government,  and  under  this 
provision  the  sale  of  the  public  lands  has  been  placed  by  statute 
under  the  control  of  the  Secretary  of  the  Interior.  To  aid  him  in 
the  performance  of  this  dut^^,  a  bureau  has  been  created,  at  the 
head  of  which  is  the  commissioner  of  the  General  Land  Office,  with 
many  subordinates.  To  them,  as  a  special  tribunal,  Congress  has 
confided  the  execution  of  the  laws  which  regulate  the  disposal  and 
general  care  of  these  lands,  and  has  also  enacted  a  system  of  laws 
by  which  rights  to  these  lands  may  be  acquired,  and  the  title  of  the 
government  conveyed  to  the  citizen. ^^  Congress  has  the  sole  power 
to  declare  the  effect  and  dignity  of  titles  emanating  from  the 
United  States,^^  and  the  States  cannot  interfere  with  the  primary 
disposition  of  the  soil  b}'  the  general  government.  "Whether  a 
title  to  a  tract  of  public  land  has  passed  from  the  United  States,  is 
a  question  depending  solely  upon  statutes  enacted  by  Congress. 

After  title  has  passed  from  the  government  the  land  becomes 
subject  to  the  laws  of  the  State  in  which  it  lies,*^  and  to  the  laws 
of  such  State  recourse  must  be  had  for  the  rules  which  govern  its 
descent,  alienation  and  transfer,  as  well  as  for  the  effect  and  con- 
struction of  its  conveyances.^'  All  the  means  by  which  the  title 
to  real  property  is  transferred,  whether  by  deed,  by  will,  or  by 
judicial  proceeding,  are  subject  to,  and  may  be  governed  by,  the 
legislative  will  of  the  State  in  which  it  lies,^*  except  where  such 
law  impairs  the  obligation  of  a  contract,  and  all  the  laws  of  a  State 
existing  at  the  time  a  conveyance  or  contract  is  made,  which  affect 
the  rights  of  the  parties  to  the  same,  enter  into  and  become  a  part 
of  it.®*  The  State  possesses  the  sole  power  to  regulate  the  modes 
of  transfer  and  the  solemnities  which  accompany  them,  and  title 
can  be  acquired,  transferred  or  lost  only  in  accordance  with  such 
regulations.*^  In  some  States,  however,  the  rule  as  above  stated 
has  been  so  modified  by  statute  that  lands  may  be  as  effectively 
convej-ed  by  conforming  to  the  law  of  the  place  where  the  deed  is 
executed  and  acknowledged.*'  In  the  latter  case  proof  of  such 
conformity  should  accompany  the  deed  or  other  instrument  of  con- 
veyance. 

80  United  States  v.  Schurz,  102  U.  577;  MeCormick  v.  Sullivanfc,  10 
S.  378.  Wheat.   (U.  S.)   192. 

81  Bagnell  v.  Broderick,  lo  Pet.  (U.  84  Osborn  v.  Adams,  18  Pick. 
S.)  436.  (Mass.)   245. 

82  Wilcox  V.  Jackson,  13  Pet.  (U.  85  Brine  v.  Ins.  Co.,  96  U.  S.  627; 
S.)   498.  Bronson  v.  Kinzic,  1  How.  311. 

83McGoon    v.    Scales,    9    Wall.    (U.  86  Story's  Conf.  Laws,  708. 

S.)    23;    Clark  v.   Graham,   6   Wheat.  87  Hoadley  v.  Stephens,  4  Neb.  431. 


CHAPTER  III. 

TITLE  BY   DESCENT. 

§  29.  Nature  of  the  title.  §  33.  Adoption. 

§  30.  Rules  of  descent.  §  34.  Proof  of  heirship. 

§  31.  Consanguinity.  §  35.  Proof  of  death. 

§  32.  AMnity.  §  36.  Conveyances  by  heirs. 

§29.  Nature  of  the  Title.  Descent,  or  hereditary  succession, 
is  the  title  whereby  one  person,  upon  the  death  of  another,  suc- 
ceeds to  or  acquires  the  estate  of  the  latter  as  heir  at  law,  the  estate 
so  derived  being  called  an  inheritance}  Though  of  universal 
observance,  inheritance  is  not  a  natural  right  but  is  purelj^  statu- 
tory, and  therefore  arbitrary,  absolute  and  unconditional.*  An 
heir  at  law  is  the  only  person  who,  by  the  common  law,  becomes 
the  owner  of  land  without  his  own  agency  or  assent,  the  law  cast- 
ing the  title  upon  him  without  regard  to  his  wishes  or  election,  and 
when  the  right  of  inheritance  is  fully  established  by  strict  com- 
pliance with  the  law  relating  to  descents,  proof  of  heirship,  etc., 
the  title  thus  conferred  is  of  the  highest  dignity  and  effectual  for 
aU  purposes.  In  the  absence  of  probate  proceedings  or  a  judicial 
determination  of  the  rights  of  the  heirs,  titles  depending  on  descent 
are  to  be  viewed  with  jealousy  and  accepted  with  caution,  and 
particularly  will  this  be  the  case  where  title  is  asserted  through 
descent  by  an  heir  in  a  remote  degree  from  the  intestate  or  com- 
mon ancestor. 

The  title  to  the  land  of  an  intestate  vests  immediately  in  the 
heir  who  holds  same  in  his  own  right,  but  charged  with  the  pay- 
ment of  the  ancestor's  debts,^  and  until  finally  settled  in  the  pro- 
bate court  the  estate  is  liable  to  be  defeated  by  a  sale  made  in  due 
course  of  administration,  becoming  absolute  only  after  the  debts 
are  extinguished.* 

The  heirs  are  said  to  take  per  capita  or  per  stirpes,  that  is  direct, 
or  in  their  o\\ti  right,  they  standing  in  equal  degree,  and  receiving 

12  Black.  Com.  201;   4  Kent  Com.  4  Vansycle    v.    Richardson,    13    111. 

'374.  171;  Wilson  v.  Wilson,  13  Barb.  252; 

8  Tyler  v.  Reynolds,  53  Iowa,  146.  Bickford    v.   Stewart,    55   Wash.    278, 

SWalbridge    v.    Day,    31    111.    379;  104   Pac.    263,   34   L.   R.    A.    (N.    S.) 

Chubb  V.  Johnson,  11  Tex.  469.  623. 

30 


§  30]  TITLE   BY   DESCENT.  31 

equal  shares ;  or,  by  right  of  representation,  where  the  descendants 
of  a  deceased  heir  take  the  same  share  or  right  in  the  estate  of  an- 
other person  that  their  ancestor  would  have  taken  if  living.  Post- 
humous children  are  considered  as  living  at  the  death  of  their 
parents  and  participate  as  such.^ 

Inheritance  only  accrues  to  the  issue  of  lawful  wedlock,  but 
all  the  presumptions  of  law  are  in  favor  of  legitimate  birth,^  and 
an  illegitimate  child  is  generally  considered  as  the  heir  of  its 
mother.'''  The  descent  of  real  property  and  the  order  of  succes- 
sion is  governed  by  special  statutes  known  as  "rules  of  descent," 
and  which  vary  in  every  State. 

§30.  Rules  of  Descent.  "The  English  law  of  descent"  says 
Chancellor  Kent,*  "is  governed  by  a  number  of  rules,  or  canons  of 
inheritance,  which  have  been  established  for  ages,  and  have  regu- 
lated the  transmission  of  the  estate  from  the  ancestor  to  the  heir, 
in  so  clear  and  decided  a  manner,  as  to  preclude  all  uncertainty 
as  to  the  course  which  the  descent  is  to  take.  But  in  the  United 
States,  the  English  common  law  of  descents,  in  its  most  essential 
features  has  been  universally  rejected,  and  each  State  has  estab- 
lished a  law  of  descent  for  itself."  The  laws  of  the  several  States, 
while  preserving  a  general  agreement  in  their  essential  outlines, 
yet  differ  materially  in  detail,  and  it  is  doubtful  if  any  two  of 
them  are  exactly  alike,  a  circumstance  that  has  induced  a  dis- 
tinguished writer  on  this  subject  to  say,  that  "this  nation  may  be 
said  to  have  no  general  law  of  descents,  which  probably  has  not 
fallen  to  the  lot  of  any  other  civilized  country. "  ^  No  attempt 
will  be  here  made  to  summarize  or  explain  the  regulations  of  de- 
scent in  the  various  States,  but  in  the  course  of  his  investigations, 
the  examiner  will  frequently  have  to  refer  to  them  for  assistance 
in  unraveling  knotty  points  or  snarls  in  the  tangled  skein  of  title. 

The  transmission  of  property  by  hereditary  descent,  from  the 
parent  to  his  children,  is  the  dictate  of  the  natural  affections,  and 
forms  the  first  rule  of  inheritance  in  every  State,  varied  in  some 
cases,  however,  by  the  equal  participation  of  the  widow.  From 
this  point  on  there  is  no  uniformity,  but,  as  a  rule,  the  lineal  kin- 
dred take  in  preference  to  the  collateral.  If  the  descendants  all 
stand  in  the  same  degree  of  consanguinity  they  take  equally,  other- 

6  4    Keut    Com.    412;     Morrow    v.  8  4  Kent  Com.  *374. 

Seott,  7  Ga.  535.  9  Reeve  on  Descent,  pref. 

6  Fox  V.  Burke,  31  Minn.  319. 

7  Miller    v.    Williams,    66    111.    92. 
This  matter  is  statutory. 


32  ABSTRACTS   OF    TITLE.  [§  30 

wise  by  right  of  representation,  and  if  there  be  no  heirs,  the  prop- 
erty escheats  to  the  State.  The  degrees  of  kindred  are  usually  com- 
puted in  the  United  States,  according  to  the  rules  of  the  civil  law ; 
and  the  kindred  of  the  half-blood  inherit  equally  with  those  of  the 
whole  blood,  in  the  same  degree,  unless  the  inheritance  be  ancestral, 
in  which  case,  as  a  general  proposition,  those  who  are  not  of  the 
blood  of  such  ancestor  are  excluded.  The  last  mentioned  rule  has 
been  enacted  substantially  in  most  of  the  States,  but  is  held  to 
refer  to  the  immediate  and  not  to  a  remote  ancestor. i° 

§31.  Consanguinity.  The  relation  subsisting  among  all  the 
(lillV'rent  pei-suns  descending  from  the  same  stock  or  common  an- 
cestor, is  called  consanguinity,  and  is  the  medium  through  which, 
in  the  descent  of  real  property,  the  several  degrees  of  kindred  are 
computed  and  deduced.  Consanguinity  is  lineal  or  collateral;  the 
former  being  the  relation  which  exists  among  persons  where  one 
is  descended  from  the  other,  as  between  father  and  son,  in  the 
direct  line  of  descent  j  the  latter  is  the  relation  subsisting  between 
persons  descended  from  the  common  ancestor,  but  not  from  each 
other,  as  between  brother  and  sister.  There  are  two  methods  of 
computing  the  degrees  of  consanguinity,  known  respectively  as  the 
civil,  and  common  law  methods,  the  latter  being  also  the  same  as 
the  canon  law. 

'J'he  rule  of  the  civil  law  is  generally  used  in  this  country,  and 
is  preferable  for  that  it  points  out  the  actual  degree  of  kindred  in 
all  cases.  This  mode  of  computation  begins  with  the  intestate,  and 
ascends  from  him  to  the  common  ancestor,  and  descends  from  such 
ancestor  to  the  next  heir,  reckoning  a  degree  for  each  person,  both 
ascending  and  descending,  and  the  degrees  they  stand  from  each 
other  is  the  degree  in  which  they  stand  related.  According  to  this 
rule  of  computation  it  will  be  seen,  the  father  of  the  intestate  stands 
in  the  first  degree,  his  brother  in  the  second,  his  nephew  in  the 
third,  etc. 

By  the  common  law  method  of  computation,  different  relations 
may  stand  in  the  same  degree,  and  the  degrees  are  counted  the 
same  whether  lineal  or  collateral.  The  mode  of  the  common  and 
canon  law  is  to  discover  the  common  ancestor,  and  beginning  with 
him  to  reckon  downwards,  and  the  degree  the  two  persons,  or  the 
more  remote  of  them,  is  distant  from  the  ancestor,  is  the  degree  of 

10  Buckingham  v.  Jacques,  37  Conn.       Appeal,    4.3    Wis.    167 ;    Ryan    v.    An- 
402;    Curren  v.   Taylor,   19  Ohio,  36;       drews,  21   Mich.   229. 
Larder  v.  Collins,  2  Pet.  58 ;  Cramer  '3 


§  33]  TITLE   BY    DESCENT.  33 

kindred  subsisting  between  them.^^  By  this  means  the  father  and 
brother  of  the  intestate,  or  person  proposed,  stand  in  the  same  de- 
gree. By  the  civil  law  the  father  stands  in  the  first  degree,  the 
brother  in  the  second.  So  by  the  common  law  the  first  cousin 
stands  in  the  second  degree ;  by  the  civil  law  he  would  stand  in  the 
fourth. 

The  line  of  ancestry  is  classed  as  ascending  or  descending,  taking 
the  person  proposed  as  the  unit,  and  is  further  classified  as  paternal 
or  maternal,  according  as  the  examination  may  lead  through  the 
father  or  the  mother.  In  England,  a  fair  ability  to  trace  gene- 
alogy is  an  indispensable  requisite  of  the  examiner,  as,  owing  to 
the  non-probate  of  real  estate  wills  until  very  recent  years,  a 
pedigree  always  accompanies  an  abstract  showing  a  descent.  The 
matter  is  of  much  less  importance  in  the  United  States,  as  in  all 
properly  conducted  probate  proceedings  a  table  of  heirship  is  al- 
ways found.  As  an  illustration  of  the  subject  under  discussion,  a 
diagram  of  the  degrees  of  consanguinity,  according  to  the  civil 
law,  is  given  on  a  succeeding  page. 

§  32.  Affinity.  The  relationship  or  connection  arising  in  con- 
sequence of  marriage,  which  exists  between  each  of  the  married 
persons  and  the  kindred  of  the  other,  is  termed  affinity,  and  is  dis- 
tinguished from  consanguinity  which  is  used  to  denote  the  ties  of 
blood.  At  common  law  the  relationship  of  affinity  is  not  sufficient 
to  obtain  legal  succession  or  inheritance,  but  by  statute,  in  some 
States,  the  surviving  husband  or  wife  has  been  endowed  with  in- 
heritable qualities  and  either  may  take  as  an  heir  of  the  other  ac- 
cording to  the  prescribed  rules  of  descent ;  and  in  the  sense  that  an 
heir  at  law  is  simply  one  who  succeeds  to  the  estate  of  a  deceased 
person,  the  surviving  wife  may  be  said  to  be  an  heir  of  her  de- 
ceased husband.^2 

§  33.  Adoption.  Adoption  is  a  juridical  act  creating  between 
two  persons  certain  relations,  purely  civil,  of  paternity  and  filia- 
tion. The  legal  adoption  by  one  person  of  the  off-spring  of  another, 
giving  him  the  status  of  a  child  and  heir  of  the  parent  by  adoption, 
was  unknown  to  the  common  law,  although  long  recognized  by  the 
civil,  and  is  of  comparatively  recent  date  in  the  United  States. 
The  act  of  adoption  is  the  creation  of  an  artificial  relation,  made  in 
conformity  with  and  regulated  by  positive  statute,  in  the  light  of 

111  Bou.  Law  Diet.  327;   2  Black.  12  McKinney    v.    Stewart,    5    Kan. 

Ck)m.  202.  384;  Steel  v.  Kurtz,  28  Ohio  St.  192. 

Warvelle  Abstracts — 3 


34  ABSTRACTS   OP   TITLE.  [§  33 

which  the  new  rights  aiid  obligations  thus  derived  are  to  be  solely 
construed.^' 

There  is  a  lack  of  uuiformity  in  the  statutes  enacted  by  the 
States,  yet,  in  the  main  they  agree  in  conferring  on  the  person  so 
adopted  the  rights  of  inheritance  and  succession,  and  other  legal 
consequences  and  incidents  of  the  natural  relation  of  parent  and 
child,  the  same  as  if  such  child  had  been  born  in  lawful  wedlock 
of  such  parent  by  adoption,  but,  as  a  rule,  restrict  such  child  from 
taking  property  expressly  limited  to  the  body  or  bodies  of  the 
parents  by  adoption,  and  in  some  instances  from  taking  from  the 
lineal  or  collateral  kindred  of  the  parents  by  right  of  representa- 
tion.^* The  right  of  inheritance  thus  secured  is  further  restricted 
to  the  adopted  parent  and  precludes  an  inheritance  from  the  actual 
children  of  such  adopted  parent,^^  while  the  right  of  inheritance 
by  the  adoptive  parents  from  the  child  is  confined  to  such  prop- 
erty as  lie  had  received  through  them,  and,  as  a  rule,  they  are 
expressly  prohibited  from  inheriting  any  property  which  the  child 
received  from  his  own  kindred  by  blood. ^^  As  against  the  adopted 
child,  the  statute  should  be  strictly  construed,  being  in  derogation 
of  the  general  law  of  inheritance,  which  is  founded  on  natural 
relationship,  and  is  a  rule  of  succession  according  to  nature,  which 
lias  prevailed  from  time  immemorial. 

It  will  thus  be  seen  how  important  a  succession  through  adop- 
tion may  become  in  the  determination  of  land  titles,  and  the  strict- 
ness necessary  on  the  part  of  examiner  and  counsel  in  the  investi- 
gation of  questions  of  this  nature.  Where  title  is  claimed  through 
a  descent  by  adoption,  a  general  summary  of  the  proceedings 
creating  the  relation  should  appear  and  the  full  and  perfect  title 
of  the  adoptive  heir  should  be  deducible  of  record  and  in  strict 
conformity  to  the  statute.  The  rights  of  inheritance  acquired  by 
an  adopted  child  under  the  laws  of  a  particular  State  are  recog- 
nized and  upheld  in  every  other  State,  so  far  as  they  are  not  in- 
consistent with  its  own  laws  and  policy,^""  but  in  the  absence  of 
statutory  directions  the  general  rules  of  descent  must  govern  as  in 
other  cases.^* 

iSKeegan  v.  Geraghty,  101  111.  26;  16  Keegan  v.  Geiaglity,  101  111.  26; 

Long  V.  Hewitt,  44  Iowa,  363;   Tyler  see,  also,  Reinders  v.  Kappelmann,  68 

V.  Reynolds,  53  Iowa,  146.  Mo.  482. 

14Hockaday  v.  Lynn,  200  Mo.  456,  17  Ross  v.  Ross,  129  Mass.  243. 

98  S.  W.  585,  8  L.  R.  A.  (N.  S.)  117.  18  Reinders  v.  Kappelmann,  68  Mo. 

16Barnhizel  v.  Ferrell,  47  Ind.  335;  482. 
Keegan  v.  Geraghty,  101  111.  26. 


TITLE   BY   DESCENT. 


35 


DEGREES   OF   CONSANGUINITY   ACCORDING   TO   THE    CIVIL   LAW. 

(Paternal  Line.) 


IV. 

Gt.  Gt.  Grand- 

/athey. 

\ 

III. 

Great 

Grand/aiher. 

V. 

Great- 

gra  ndu  ncle. 

\ 

II. 
Grandfather. 

IV. 
Great-uncle. 

\ 

I. 

Father. 

III. 

Uncle. 

' 

V. 

Great-u  ncle^s 

Son^ 

1 

\ 

O. 

Intestate. 

II. 

Brother. 

IV. 

Cousins-ger- 

man. 

VI. 
2d  Cousin. 

\ 

I. 
Son. 

III. 

Nephew. 

V. 

1st  Cousins 

Son. 

II. 
Grandson. 

IV. 

Nephew's 
Son. 

III. 
Great- 
grandson. 

36  ABSTRACTS   OF   TITLE.  [§34 

§34.  Proof  of  Heirship.  Though  title  vests  in  the  heir  by 
operation  of  law  immediately  on  the  death  of  the  ancestor,  yet 
purchasers  desire,  and  should  have,  affirmative  evidence  that  the 
person  asserting  such  title  is  justified  in  so  doing,  and  this  is  fur- 
nished by  the  proceedings  of  the  probate  court.  In  all  abstracts 
the  interval  of  title  between  the  deed  by  which  the  decedent  be- 
came seized  and  that  which  purports  to  be  a  conveyance  by  the 
heirs,  should  be  filled  by  a  summary  or  abridgement  of  the  pro- 
ceedings in  probate,  showing  the  death  of  the  intestate,  proof  of 
heirship  by  those  asserting  title,  and  a  satisfactory  settlement  of 
the  estate,  for  until  all  this  has  been  accomplished  the  title  of  the 
heirs  is  liable  to  be  defeated  by  a  sale  made  by  the  administrator, 
as  will  also  the  title  of  one  purchasing  from  them.^*  This  is  a 
necessary  result  of  the  rule  of  law,  that  the  intestate's  property  is 
primaril}-  holden  for  the  payment  of  his  debts,  and  may  be  sold 
by  his  administrator  for  that  purpose.  Such  a  sale  necessarily 
defeats  all  hereditary  titles. 

§35.  Proof  of  Death.  The  recitals  of  the  essential  facts  neces- 
sary to  confer  jurisdiction,  in  the  decrees  and  judgments  of  courts 
of  exclusive  though  of  limited  jurisdiction,  are  prima  facie  evi- 
dence of  the  facts  so  recited.  Upon  this  principle  it  has  been  re- 
peatedly declared  that  the  gi'ant  of  letters  testamentary  or  admin- 
istration is  competent  evidence  of  the  death  of  the  testator  or  in- 
estate,^®  and  in  support  of  titles  claimed  by  descent  is  of  the  high- 
est character  of  evidence  of  title  in  the  heir.  Usually  no  other 
proof  will  be  required  or  need  be  shown. 

§  36.  Conveyances  by  Heirs.  Few  titles  are  to  be  accepted 
with  greater  caution,  than  those  asserted,  and  purported  to  be 
conveyed,  by  persons  claiming  to  be  the  heirs  at  law  of  the  per- 
sons last  seized,  in  the  absence  of  full  compliance  with  prescribed 
regulations  concerning  the  descent  and  distribution  of  intestate 
estates.  Too  frequently,  from  various  motives,  no  probate  is  ever 
had.  and  the  children,  or  other  heirs,  of  the  decedent  unite  to  con- 
vey their  interests  describing  themselves  in  such  conveyance  as 
"children  and  heirs  at  law"  of  such  decedent.  In  England,  a 
pedigree  would  accompany  a  conveyance  of  this  character,  fixing, 
by  reference  to  the  rules  of  descent,  the  nature  and  extent  of  the 
interest  owned  by  each  heir.     In  the  United  States,  the  paucity  of 

19  Hill  V.  Treat,  67  Me.  501.  Welch   v.    R.   R.   Co.,   53   N.   Y.    610; 

20Coiiistock    V.    Crawford,    3    Wall.       JcfTers  v.  Radcliff,  10  N.  H.  242. 
396;  Belden  v.  Meeker,  47  N.  Y.  307; 


§  36]  TITLE   BY   DESCENT.  37 

family  records  and  the  method  of  compiling  same,  would  render 
a  pedigree  of  little  value,  even  were  they  in  use,  and  the  examin- 
ing counsel,  if  doubts  arise,  usually  resorts  to  the  doubtful  alterna- 
tive of  an  affidavit  to  prove  the  fact  of  heirship  and  bolster  up  the 
title,  the  affidavit,  in  many  instances,  being  entitled  to  less  cre- 
dence than  the  deed  it  supplements.  A  title  resting  on  no  better 
foundation  than  a  deed  of  this  character,  unless  reinforced  by  the 
statute  of  limitations,  is  entitled  to  little  consideration,  and  is 
liable  to  be  defeated  at  any  time  before  the  bar  of  the  statute  has 
interposed.  Nor  can  the  purchaser  know,  unless  personally  cog- 
nizant of  the  facts,  that  all  the  heirs  have  united  in  the  convey- 
ance, or  that  they  are  qualified  to  convey;  or  that  a  widow's  dower 
may  not  greatl}''  depreciate  the  value  of  the  property  thus  ac- 
quired. 

In  this  country,  where  all  the  heirs  are  allowed  an  equal  repre- 
sentation, partition  is  frequently  made  by  the  heirs  between  them- 
selves without  the  intervention  of  a  court,  and  while  such  parti- 
tions are  regarded  as  valid,  yet  when  made  of  an  unprobated  estate 
confusion  and  uncertainty  are  greatly  augmented,  and  purchasers 
should  decline  the  title  thus  derived  as  affording  no  measure  of 
safety.  "Where  affidavits  are  resorted  to  to  prove  heirship,  death 
of  ancestor,  etc.,  they  should  be  well  authenticated  as  well  as  posi- 
tive in  their  averments;  but  however  well  framed  they  may  be, 
they  afford  evidence  of  the  lowest  order  only.  Where  partition  is 
the  result  of  a  regular  judicial  proceeding  the  foregoing  observa- 
tions do  not  apply,  even  though  there  has  been  no  probate  of  the 
ancestor's  estate.  In  all  properly  conducted  suits  for  partition  a 
proof  of  heirship  is  required  before  division  and  the  fact  of  heir- 
ship must  be  found  by  the  decree  entered  in  the  suit. 


CHAPTER  IV 


TITLE  BY  PURCHASE. 


§37. 

Nature  of  the  title. 

§48. 

Riparian  titles. 

S38. 

Deed. 

§49. 

Dedication. 

§39. 

Devise. 

§50. 

Confirmation. 

§40. 

Public  grant. 

§51. 

Occupancy. 

§41. 

Estoppel. 

§52. 

Abandonment. 

§42. 

Tcchnii'al  estoppel. 

§53. 

Eminent  domain. 

§43. 

Equitable  estoppel. 

§54. 

Title  acquired   by   eminent  do 

§44. 

Relation. 

main. 

§45. 

Prescription  and  limitation. 

§55. 

Escheat. 

§46. 

Accretion  and  reliction. 

§56. 

Confiscation. 

§47. 

Avulsion. 

§57. 

Forfeiture. 

§37.  Nature  of  the  Title.  Purchase  is  a  generic  term  which 
includes  every  mode  of  coming  to  an  estate,  except  by  inheritance, 
though  in  its  more  limited  sense  it  is  applied  only  to  the  acquisi- 
tion of  lands  by  way  of  bargain  and  sale  for  money  or  other  con- 
sideration. Neither  law  writers  nor  courts  seem  to  have  ventured 
on  a  more  extended  definition,  if  indeed  one  can  be  framed,  and 
the  one  above  given  has  come  down  unchanged  from  Blackstone, 
who  in  turn  borrowed  it  from  earlier  writers. 

There  are  four  principal  methods  recognized  of  acquiring  title 
by  purchase,  to  wit:  by  deed,  devise,  prescription  or  limitation 
and  escheat.  To  these  may  be  added  title  accruing  through  opera- 
tions of  nature;  as  accretion,  reliction  and  avulsion,  as  well  as  such 
as  result  from  our  political  and  civil  relations ;  as  eminent  domain, 
confiscation  and  forfeiture.  Some  writers  still  farther  extend  the 
list  by  the  addition  of  abandonment,  occupancy  and  estoppel.  The 
two  former  of  these  are  not  known  in  the  United  States,  while  the 
latter  is  not,  strictly  speaking,  a  method  of  acquiring  title  at  all, 
but  simply  a  recognition  of  e:xisting  titles. 

In  the  paragraphs  following,  no  attempt  has  been  made  at  syste- 
matic treatment  of  the  topics  above  mentioned,  and  only  those  gen- 
eral features  of  interest  to  the  examiner  of  titles  will  be  presented. 


§  38.  Deed.  Title  by  deed  is  the  most  common  form  of  pur- 
chase, and  that  by  which  the  great  bulk  of  all  the  real  property  in 
the  country  is  directly  held.     The  term  "deed"  is  very  compre- 

38 


§  40]  TITLE   BY   PURCHASE.  39 

hensive  in  its  signification,  and  denotes  not  only  all  classes  of  in- 
struments for  the  conveyance  of  land,  but  any  instrument  in  writ- 
ing under  seal,  whether  relating  to  land  or  any  other  matter.  In 
its  popular  acceptation,  however,  it  is  confined  to  conveyances  of 
land,  or  estates  or  interests  therein,  and  is  still  further  restricted 
in  its  meaning  to  absolute  sales,  as  distinguished  from  mortgages, 
indicating  conditional  sales,  though  the  latter  are  as  essentially 
deeds  as  the  former.  In  its  broad  signification  it  is  the  highest 
form  of  expression  of  title  known  to  the  law. 

§  39.  Devise.  Next  to  deeds,  testamentary  conveyances  form 
the  most  common  vehicle  for  the  transfer  of  interests  or  estates  in 
land,  the  instrument  for  affecting  a  transfer  being  called  a  will; 
the  subject-matter  as  well  as  the  title  by  which  same  is  acquired,  a 
devise;  and  the  recipient  of  the  testator's  bounty,  a  devisee.  A 
wiU,  which  is  effective  as  a  conveyance  only  at  the  maker's  death, 
is  from  its  own  nature  ambulatory  and  revocable  during  his  life, 
and  it  is  this  ambulatoi-y  quality  which  forms  the  chief  character- 
istic of  wiUs;  for  though  a  disposition  by  deed  may  postpone  the 
possession  or  enjoyment,  or  even  the  vesting  of  an  estate  until  the 
death  of  the  disposing  party,  yet  the  postponement  in  such  cases 
is  produced  by  express  terms  and  does  not  result  from  the  nature 
of  the  instrument.  Title  by  devise  is  of  the  highest  dignity,  and 
effective  for  all  purposes,  yet  it  may  be  defeated  in  the  same  man- 
ner as  a  title  by  descent,  when  in  the  course  of  administration  it 
becomes  necessary  to  sell  the  testator's  land  for  the  payment  of 
his  debts. 

§  40.  Public  Grant.  For  purposes  of  convenience  a  distinction 
is  made  between  conveyances  by  the  sovereign  and  deeds  of  the 
individual.  Public  grants,  when  forming  the  foundation  of  title, 
are  usually  classed  separately  from  other  forms  of  conveyance  and 
constitute  a  special  department  in  all  works  treating  of  titles  or 
estates.  The  original  divesture  of  title  by  the  government  may  be 
effected  in  a  variety  of  ways,  either  of  which  will  be  sufficient  for 
the  purpose  intended.  The  usual  method  is  by  patent  issued  in 
conformity  to  prescribed  legal  formalities,  though  government  may 
make  a  grant  by  a  law  as  effectually  as  by  a  patent  issued  in  pur- 
suance of  a  law ;  ^  and  a  confirmation  by  law  of  a  claim  of  title  in 
public  lands  is  to  all  intents  and  purposes  a  grant  of  such  lands." 

1  Hall  V.  Jarvis,  65  111.  302 ;   Stra-  2  Challef  oux    v.    Ducharme,    4    Wis. 

ther  V.  Lucas,  12  Pet.  411;   Mayo  v.       554. 
Libby,  12  Mass.  339. 


40  ABSTRACTS  OF   TITLE,  [§40 

The  original  grant,  whatever  may  be  its  form,  is  the  first  link  in 
the  chain  of  title,  and  whenever  practicable  should  constitute  the 
initial  of  the  abstract,  as  the  basis  upon  which  all  after-acquired 
titles  and  derivative  interests  rest. 

§41.  Estoppel.  Title  by  estoppel,  as  defined  by  Washburn,  "is 
where  equity,  and  in  some  caiies  the  law,  in  order  to  accomplish 
the  purposes  of  justice  which  can  not  be  othei-wise  reached,  draws 
certain  conclusions  from  the  acts  of  one  party  in  favor  of  another, 
in  respect  to  the  ownership  of  lands,  which  it  does  not  allow  the 
first  to  controvert  or  deny. ' '  *  Strictly  speaking,  a  title  is  rather 
presumed  than  acquired  by  estoppel,  which  can  operate  neither 
to  divest  nur  transfer  an  estate,  and  the  parties  are  precluded  by 
former  acts  from  asserting  anything  to  the  detriment  of  the  title. 

Estoppels  are  not  favored  in  law,  for  the  object  of  the  adminis- 
tration of  justice  is  to  discover  and  apply  tlie  truth;  but  there  are 
cases  in  which  the  courts  are  bound  to  say  to  a  litigant  that  he  has 
to  his  own  advantage,  or  to  the  injury  of  his  adversary,  asserted 
that  which  is  false,  and  that,  having  done  so,  he  miist  be  forever 
forbidden  to  unfold  for  his  own  benefit  the  truth  of  the  matter.* 

Mutuality  is  an  essential  ingredient  of  estoppels,  and  it  follows 
from  the  very  principle  on  which  the  whole  doctrine  rests,  that 
they  operate  neither  in  favor  of  nor  against  strangers,  but  aifect 
only  the  parties,  and  their  privies  in  blood,  estate,  or  in  law.  A 
third  party  derives  no  advantage  from,  nor  can  he  be  bound  by  an 
estoppel,  and  this  rule  applies  equally  whether  the  estoppel  arises 
by  record,  deed,  or  matter  in  pais.^  Estoppels  are  classified,  ac- 
cording to  their  nature,  as  technical,  or  by  record  or  deed,  and 
eqiittable,  or  in  pain.  Courts  at  the  present  day  incline  to  restrict 
the  doctrine  of  technical  estoppel,  and  to  favor  and  extend  equit- 
able estoppel.^ 

§  42.  Technical  Estoppel.  The  estoppel  arising  from  deeds 
and  records  is  that  which  directly  concerns  an  examiner  of  titles, 
and  is  really  the  only  question  of  this  nature  on  which  he  can  be 
called  to  pass.  Matters  in  pais,  from  their  nature,  are  not  pre- 
sented to  him,  nor  are  they  effective  in  questions  of  title  until  pre- 
sented for  determination  to  some  competent  tribunal,  when  they 

8  3  Wash.  Eeal  Prop.  (4th  Ed.)  70.  Simpson  v.   Pearson,  31  Ind.  1;   Mc- 

4  Abbott    V.    Wilber,    22    La.    Ann.  Donald  v.  Gregory,  41  Iowa,  513. 
368 ;  Gray  v.  Pingree,  17  Vt.  419,  6  State  v.  Pepper,  31  Ind.  76. 

5  Chops  V.  Lorman,  20  Mich.  327; 


§  42]  TITLE   BY   PURCHASE.  41 

become  matters  of  record  and  operative,  if  at  all,  as  technical 
estoppel. 

Estoppel  by  record  is  based  upon  the  rnling  and  determinations 
of  the  courts,  and  proceedings  had  therein,  which  are  considered 
at  length  in  other  portions  of  the  work.  Verdicts  and  judgments 
are  conclusive  by  way  of  estoppel,  only  as  to  facts  without  the 
proof  or  admission  of  which  they  could  not  have  been  rendered,'' 
or  of  matters  material  to  the  decision  of  the  cause,  and  which  the 
parties  might  have  had  decided,  although  not  actually  litigated,' 
but  not  as  to  facts  not  essential  to,  although  consistent  with  the 
general  verdict  or  decree  entered  in  the  case.®  The  estoppel  of  a 
judgment  extends  only  to  the  question  directly  involved  in  the 
issue,  not  to  any  incidental  or  collateral  matters,  although  they 
may  have  arisen  and  been  passed  on,^®  and  is  effective  only  as  be- 
tween the  original  parties  thereto  or  their  privies.^^  It  must 
equally  estop  both  parties  thereto,  or  it  cannot  be  set  up  by  either,^'' 
and  is  riot  available  for  or  against  a  stranger.^^  The  reversal  of  a 
judgment  destroys  its  efficacy  as  an  estoppel.^* 

Plstoppel  by  deed  arises  from  the  provisions  contained  in  instru- 
ments for  the  conveyance  of  land,  either  by  recital,  admission, 
covenant  or  otherwise,  whether  in  express  terms  or  by  necessary 
implication,  and  parties  giving  and  receiving  such  deeds,  together 
with  their  privies,  are  estopped  from  denying  the  operation  thereof 
according  to  the  manifest  intent. ^^  In  controversies  concerning 
the  title  to  land  the  question  of  estoppel  arises  most  frequently  in 
construing  the  effect  of  covenants.  Thus,  if  a  person  having  no 
title  to  land  conveys  the  same  with  a  general  warranty  and  after- 
ward acquires  title,  such  acquisition  will  inure  to  the  benefit  of  the 
grantee,  because  the  grantor  is  estopped  to  deny,  against  the  terms 
of  his  own  warranty,  that  he  had  the  title  in  question.^^  The 
mischief  of  the  rule  is  where  a  grantor  who  has  conveyed  without 
having  title  subsequently  acquires  same  and  then  conveys  to  a 
third  party.    Usually,  such  third  party  would  look  no  farther  than 


VBurlen  v.  Shannon,  99  Mass.  200 

8  Lindsley    v.    Thompson,    1    Tenn 
Ch.  272;  Buck  v.  Collins,  69  Me.  445 

9  Burlen  v.  Shannon,  99  Mass.  200 

10  Lewis'  Appeal,  67  Penn.  St.  153 
Dixon    V.     Merritt,     21     Minn.     196; 


14  Smith  V.  Frankfielrl,  77  N.  Y. 
414. 

15  Taggart  v.  ^^isley,  4  Oreg.  235 ; 
Tobey  v.  Taunton,  119  Mass.  404; 
Atlantic  Dock  Co.  v.  Leavitt,  54  N.  Y. 
35;    Foster   v.   Young,   35   Iowa,   27; 


Providence  v.  Adams,  11  E.  I.  190.  Scoffin  v,  Grandstaff.  12  Kan.  467. 

11  McDonald   v.   Gregory,   41   Iowa,  16  Burtners    v.     Keran,    24    Gratt. 
513.  (Va.)   43;   Wiesner  v.  Zaun,  39  Wis. 

12  Stoddard  V.  Burton,  41  Iowa,  582.  188;    Clark    v.    Baker,    14    Cal.    612; 

13  Mayo  V.  Wood,  50  Cal.  171.  Robinson  v.  Douthitt,  64  Tex.  101. 


42  ABSTRACTS   OF   TITLE.  [§  42 

the  acquisition  of  title  by  his  grantor,  and,  relying  on  such  fact, 
would  pay  the  purchase  price  and  take  a  deed.  Yet,  the  deed,  in 
such  a  case,  would  convey  no  title,  if  the  prior  deed  of  his  grantor 
was  then  of  record,  for,  by  the  rule  of  estoppel,  the  title  passed,  or 
inured,  to  the  first  p:rantee  the  moment  the  grantor  became  clothed 
therewith.^'  But  this  effect  does  not  extend  to  any  other  cove- 
nants than  that  of  warranty.  The  other  covenants  are  personal 
only.  Nor  does  the  rule  extend  to  covenants  by  a  married  woman, 
except  in  States  where  married  women  have  been  expressly  enabled 
by  statute  to  enter  into  covenants." 

Although  a  grantor  cannot  set  up  a  hostile  title  existing  at  the 
time  of  his  conveyance,  because  he  is  estopped  by  his  covenants, 
3'et  if  the  deed  be  a  mere  quitclaim,  without  covenants,  and  pur- 
ports to  convey  nothing  but  the  present  interest  of  the  grantor  in 
the  premises,  whatever  that  interest  may  be,  without  defining  the 
character  of  the  interest,  or  affirming  that  he  has  an  interest  in 
the  premises,  he  is  not  debarred  from  subsequently  acquiring,  and 
setting  up,  any  other  title,  whether  existing  at  the  time  of  his  con- 
vej-ance  or  subsequently  created.^*  It  has  been  held,  in  a  late  case, 
that  the  doctrine  of  covenants  for  title,  inuring  on  principles  of 
estoppel  in  favor  of  a  subsequent  grantee,  is  not  to  be  carried  so 
far  as  to  charge  a  purchaser,  or  his  attorney  examining  title  for 
him,  with  constructive  notice  of  deeds  recorded  before  the  vendor 
has  any  record  title,  and  that  such  purchaser,  finding  an  apparent 
title  of  record,  may  rely  upon  it,  and  is  not  required  or  expected 
to  look  further,^®  yet  such  decision  seems  to  be  founded  on  doubt- 
ful authorit}-  and  is  opposed  to  the  great  bulk  of  American  cases 
on  the  subject.^^ 

§  43.  Equitable  Estoppel.  An  estoppel  in  pais  rests  upon  the 
principle  that  a  party  has  misled  another  to  his  prejudice,  under 
such  circumstances  that  it  would  be  a  fraud  for  him  to  assert  what 
may   be   the   truth.      Hence,    to   raise   an    estoppel    from    former 

17  Morrison  v.  Caldwell,  5  T.  B.  Sydnor  v.  Palmer,  29  Wis.  229;  Shu- 
Mon.  (Ky.)  426;  Wilson  v.  Thraup,  maker  v.  Johnson,  7.5  Ind.  33;  Gra- 
2  Cow.  (N.  Y.)  195;  Kirkaldie  v.  ham  v.  Graham,  55  Ind.  23. 
Larrabee,  31  Cal.  455.  See  the  re-  20Dodd  v.  Williams,  3  Mo.  App. 
marks  of  Mr.  Rawle  in  opposition  to  278;  see  also  State  v.  Bradish,  14 
the  doctrine.     Bawle   on  Govts.    (5th  Mass.  296. 

Ed.),   §259.  21  Logan    v.    Steel,    4    Mon.    i33; 

18  Wilson  V.  King,  23  N.  J.  Eq.  Mitchell  v.  Pettee,  2  W.  Va.  470; 
150.  Bates  v.  Norcross,  17  Pick.  14;   Clark 

19  Bruce  v.  Luke,  9  Kan.  201;  v.  Baker,  14  Cal.  612;  DeWolf  v. 
Bead    v.    Whittemore,  60    Me.    479;       Hayden,  24  111.  525. 


§43]  TITLE  BY   PURCHASE.  43 

declarations  or  admissions  by  a  party  to  prevent  him  from  setting 
up  his  title  to  property,  the  facts  must  show:  (1.)  That  when 
making  the  statements  or  admission  relied  upon  he  was  apprised 
of  the  true  state  of  his  own  title.  (2.)  That  he  made  the  statement 
or  admission  with  the  express  intention  to  deceive,  or  with  such 
careless  or  culpable  negligence  as  to  amount  to  constructive  fraud. 
(3.)  That  the  other  party  had  neither  knowledge  of  the  true  state 
of  the  title  nor  convenient  means  of  acquiring  such  knowledge  by 
the  use  of  ordinary  diligence.  (4.)  That  he  relied  upon  such  state- 
ment or  admission,  and  will  be  injured  by  allowing  its  truth  to  be 
disproved.^''  It  will  be  seen  that  the  important  and  primary 
ground  of  estoppel  in  pais  is,  that  it  would  be  a  fraud  in  a  party  to 
assert  what  his  previous  conduct  had  denied,  when  on  the  faith  of 
that  denial  others  have  acted,^  but  no  man  can  set  up  another's 
act  or  declaration  as  the  ground  of  an  estoppel,  unless  he  has  him- 
self been  deceived  by  it,^*  and  a  party  can  never  be  estopped  by  an 
act  that  is  illegal  and  void.^^ 

An  estoppel  in  pais,  unlike  that  by  deed,  operates  only  on  exist- 
ing rights.  Thus  a  person  who,  while  having  no  title  in  himself, 
induces  another  to  purchase  land  at  a  sheriff's  sale  by  his  repre- 
sentations that  an  unimpeachable  title  will  pass  by  such  sale,  is 
not  precluded  from  setting  up  afterward  an  adverse  title  in  him- 
self.26 

At  law,  the  doctrine  of  equitable  estoppel  can  not  be  applied  to 
work  a  transfer  of  property,  which,  by  the  statute  of  frauds,  can 
be  effected  only  by  a  writing,  and  the  legal  title  must  always  pre- 
vail,^ yet,  although  a  party  cannot  divest  himself  of  an  estate  by 
parol,  he  may,  without  writing  so  conduct  himself  with  reference 
to  it  that  he  will  be  estopped  afterward  to  assert  a  claim  thereto; 
and  this  principle  is  applied  without  reference  to  the  statute  of 
frauds.^* 

The  doctrine  of  estoppel  does  not  ordinarily  apply  to  a  State 
as  it  does  to  individuals.  The  sovereign  power  is  but  a  trustee  for 
the  people.  Its  acts  by  its  agents  and  the  people  should  not  be 
bound  by  any  statement  of  facts  made  by  those  agents.    For  their 

22  Martin    v.    Zellerbach,    38    Cal.  24  Simpson  v.  Pearson,   31  Ind.   1 ; 

300;   McCabe  v.  Eaney,  32  Ind.  309;  McKinzie  v.   Steele,   18   Ohio  St.   38; 

Nugent  V.  Cincinnati,  etc.,  R.  B.  Co.,  Devries  v.  Haywood,  64  N.  C.  83. 

2    Dinsey    (Ohio)     302;    Halloran    v.  26  Mattox  v.  Hightshue,  39  Ind.  95. 

Whitcomb,  43  Vt.  306;  Horn  v.  Cole,  26  Donaldson  v.  Hibner,  55  Mo.  492. 

51   N.   H.   287;    Clark   v.   Coolidge,   8  27  Kelly  v.  Hendricks,  57  Ala.  193; 

Kan.   189;    Mallony  v.   Horan,   49  N.  Hayes  v.  Livingston,  34  Mich.  384. 

Y.  111.  28  R.  R.  Co.  V.   Ragsdale,  54  Miss. 

23Riee  V.  Bunce,  49  Mo.  231.  200. 


44  ABSTRACTS   OP   TITLE.  [§  43 

benefit  the  truth  may  always  be  shown,  notwithstanding  any  for- 
mer statement  to  the  eontrary.^^  This  principle  rests,  in  part  at 
least,  upon  the  general  doctrine  that  the  State  cannot  part  with  its 
title  to  land  except  by  grant  or  other  record  evidence.^"  An  appar- 
ent exception  has  been  said  to  arise  in  those  cases  in  which  the  act 
sought  to  be  made  binding  was  done  in  its  sovereign  capacity  by 
legislative  enactment  or  resolution ,^^  but  this  is  not  so  much  an 
exception  to  the  general  doctrine  of  estoppel,  by  acquiescence  in 
an  authorized  act  of  a  mere  subordinate  agent,  as  it  is  an  original 
binding  affirmative  act  on  the  part  of  the  State  itself,  made  in  the 
most  solemn  manner  in  which  it  can  give  expression  to  the  sover- 
eign will.^^ 

§  44.  Relation.  The  doctrine  of  relation  is  applied  in  convey- 
ances of  land  to  equitable  titles  which  subsequently  mature,  either 
by  operation  of  law  or  act  of  the  parties,  into  legal  titles,  and 
where  several  acts  concur  to  make  a  conveyance,  estate,  or  other 
thing,  the  original  act  will  be  preferred,  and  to  this  the  other  acts 
will  be  said  to  have  relation. 

The  fiction  of  relation  is,  that  the  intermediate  horm  fide  alienee 
of  the  incipient  interest  may  claim  that  the  grant  inures  to  his 
benefit  by  an  ex  post  facto  operation.  In  this  way  he  receives  the 
same  protection  at  law  that  a  court  of  equity  could  afford  him. 
Thus,  the  assignee  of  a  certificate  of  the  purchase  of  school  land, 
the  purchase  money  being  all  paid,  conveyed  the  premises  by  quit- 
claim deed;  a  few  days  afterward  he  received  the  patent,  and  it 
was  held  that  the  legal  title  passed  to  his  grantee.  So,  where  a 
deed  is  made  in  pursuance  of  a  recorded  land  contract,  it  relates 
back  to  the  date  of  the  contract,  and  conveys  the  title  as  it  stood 
at  the  time  the  contract  was  recorded.^^  The  same  doctrine  also 
applies  to  grants  of  unlocated  land,  the  subsequent  location  operat- 
ing by  relation  to  the  original  grant.^* 

The  doctrine  of  relation  is  a  fiction  of  law  adopted  by  the  courts, 
solely  for  the  purpose  of  justice,  where  several  proceedings  are 
required  to  perfect  a  conveyance  of  land ;  it  is  only  applied  for  the 
security  and  protection  of  persons  who  stand  in  some  privity  with 

29  Fannin    Co.    v.    Riddle,    51    Tex.  32  Saunders  v.  Hart,  57  Tex.  8. 
360;    Parish    v.    Coon,    40    Cal.    50;  33  Welch    v.    Button,    79    111.    465; 
Johnson  v.  U.  S.,  5  Mason  C.  C.  425.          Snapp  v.  Pierce,  24  111.  156. 

30  Saunders  v.  Hart,  57  Tex.  8.  34  Dequindre    v.    Williams,   31    Ind. 
81  Alexander  v.  State,  56  Ga.  486;       444. 

Enfield  v.  Permit,  5  N.  H.  285;  Com- 
monwealth V.  Andre,  3  Pick.  224. 


§  45]  TITLE  BY  PURCHASE.  45 

the  party  that  initiated  the  proceedings  and  acquired  the  equit- 
able claim  or  right  to  the  title.  It  does  not  affect  strangers  not 
connecting  themselves  with  the  equitable  claim  or  right  by  any 
valid  transfer  from  the  original  or  any  subsequent  holder.^^ 

§45.  Prescription  and  Limitation.  Prescription  is  that  title 
which  arises  from  long  and  continued  possession  of  property,  and 
is  founded  upon  the  presumption  that  the  party  in  possession 
would  not  have  been  allowed  by  other  claimants  to  hold  same 
without  a  just  and  paramount  right.  Prescription,  in  the  ancient 
sense  of  the  word,  rests  upon  the  supposition  of  a  grant,  and  the 
use  or  possession  on  which  such  title  is  founded  must  be  uninter- 
rupted and  adverse,  or  of  a  nature  to  indicate  that  it  is  claimed  as 
a  right,  and  not  the  effect  of  indulgence,  or  of  any  compact  short 
of  a  grant.^^  Presumptions  of  this  nature  are  adopted  from  the 
general  infirmity  of  human  nature,  the  difficulty  of  preserving 
muniments  of  title,  and  the  public  policy  of  supporting  long  and 
uninterrupted  possessions.  They  are  founded  upon  the  considera- 
tion that  the  facts  are  such  as  could  not,  according  to  the  ordinary 
course  of  human  affairs,  occur,  unless  there  was  a  transmutation 
of  title  to,  or  an  admission  of  an  existing  adverse  title  in,  the  party 
in  possession.^' 

The  period  of  legal  memory,  or  prescription,  does  not,  at  com- 
mon law,  extend  farther  back  than  sixty  j^ears,^*  while  forty  years 
is  usually  a  sufficient  length  of  time  to  establish  a  prescriptive 
title,^^  and,  in  general,  it  is  the  policy  of  the  courts  to  limit  the 
presumption  of  grants  to  periods  analogous  to  those  of  the  statute 
of  limitations,  in  eases  where  the  statute  itself  does  not  apply.*® 
A  title  founded  upon  prescription  or  limitation,  accompanied  by 
an  adverse  user  or  enjoyment,  is  recognized  as  valid  and  sub- 
stantial, as  against  all  save  the  sovereign  power,*^  and  in  the  older 
States  of  the  Union,  where  it  is  often  difficult  to  trace  title  to  its 
source,  property  is  freely  conveyed  on  the  assurance  furnished  by 
time  and  the  statute  of  limitations. 

Twenty  years  is  the  period  ordinarily  fixed  by  the  statute  in 
which  to  perfect  an  adverse  possession  of  lands,  while  in  case  the 
occupant  claims  a  title  exclusive  of  any  other  right,  founding  such 

36  Gibson  v.  Chouteau,  13  Wall  92.  38  Coolidge  v.  Learned,  8  Pick.  504; 
36Gayetty  v.  Bethune,  14  Mass.  49;       Odiorne  v.  Wade,  5  Pick.  421. 

Odiorne  v.  Wade,  5  Pick.  421.  89  Melvin  v.  Whiting,  10  Pick.  295. 

37  Gayetty  v.  Bethune,  14  Mass.  49 ;  40  Hunt  v.  Hunt,  3  Met.  175. 
Rooker  v.  Perkins,  14  Wis.  79-;   Tay-  41  Gardiner  v.  Miller,  47  Cal.  570. 
lor  V.  Watkins,  26  Tex.  688. 


46  ABSTRACTS   OP   TITLE.  [§  46 

claim  upon  some  written  iustiumont,  judgment  or  decree,  ten 
years  is  frequently  sufficient,  and  in  some  States  even  a  shorter 
period.** 

§46.  Accretion  and  Reliction.  Accretion  is  the  increase  of 
land,  caused  by  the  addition  made  by  the  washing  of  the  sea,  a 
navigable  river,  or  other  water  course  to  which  the  land  is  con- 
tiguous, whenever  the  increase  is  so  gradual  that  it  can  not  be 
perceived  at  any  one  moment  of  time."  The  increase  or  deposit 
obtained  by  accretion  is  technically  called  alluvion,  and  whether 
produced  by  natural  or  artificial  causes  inures  to  the  benefit  of  the 
adjacent  territory.**  It  is  held  by  the  same  title,  and  under  the 
same  grant,  as  the  land  which  it  adjoins,  and  is  subject  to  the  same 
liens  and  benefited  by  the  same  incidents  that  appertain  to  such 
adjacent  land.*^ 

Upon  all  rivers  not  navigable  by  common  law  the  owner  of  the 
land  adjoining  is  'prima  facie  owner  of  the  soil  to  the  central  line 
or  thread  of  the  stream  subject  to  the  public  right  of  navigation.*^ 
The  presumption  will  prevail  in  all  cases  in  favor  of  the  riparian 
proprietor,  unless  controlled  by  some  express  words  of  description 
which  exclude  the  bed  of  the  river,  and  in  all  cases  where  the  river 
itself  is  used  as  a  boundary,  the  law  will  expound  the  grant  as 
extending  to  the  center  or  thread.*' 

Upon  navigable  lakes  and  rivers,  where  the  public  easement  is 
not  interrupted,  the  question  of  navigability,  as  at  common  law. 
does  not  arise,  and  the  riparian  proprietor  will  stUl  be  entitled  to 
all  accretions  without  regard  to  navigability.** 

42  Consult  local  statutes  for  tlie  pe-  Adams  v.  Frothingham,  3  Mass.  352 ; 
riods  of  limitation,  and  the  character  People  v.  E.  R.  Co.,  42  N.  Y.  315; 
of  the  occupancy  necessary  to  perfect  Lockwood  v.  R.  R.  Co.,  37  Conn.  387; 
title.  Lammers  v.  Nissin,  4  Neb.  245. 

43  Lovingston  v.  St.  Clair  Co.,  64  45  Campbell  v.  Gas  Co.,  84  Mo.  352 ; 
111.  56;   Krant  v.  Crawford,  18  Iowa,  Gale  v.  Kinzie,  80  111.  132. 

554;  Benson  v.  Morrow,  61  Mo.  352.  46  Hubbard    v.    Bell,    54    111.    110; 

This   definition  has   its   origin  in   the  Olson   v.    Merrill,    42    "Wis.    203.      At 

Institutes  of  Justinian,   see  Lib.   II,  common  law  only  tide  waters  are  navi- 

Tit.    I,   See.    20,    and    has    been    fol-  gable. 

lowed  by  courts  and  writers  ever  since.  47  Braxon  v.   Bressler,  64  111.   488 ; 

See,  Lammers  v.  Nissen,  4  Neb.  245;  Ross  v.  Faust,  54  Ind.  471. 

St.  Louis,  etc.,  Ry.  Co.  v.  Ramsey,  53  48  Lovnngston   v.    St.    Clair   Co.,   64 

Ark.   314;    Jefferis   v.   Land   Co.,   134  111.   56;    Sehurmeir   v.   R.   R.   Co.,    10 

U.  S.  178.  Minn.   82;    Magnolia  v.  Marshall,   39 

44  St.    Clair   Co.   v.   Lovingston,   23  Miss.  111. 
Wall.  (U.  S.)  46,  affirming  64  lU.  56; 


§  46]  TITLE   BY   PURCHASE.  47 

The  general  rule  above  stated  applies  as  well  to  land  which  by 
erosion  becomes  riparian,  and  where  through  the  gradual  washing 
away  of  intervening  land  an  originally  remote  tract  becomes  ripar- 
ian all  of  the  rights  of  accretion  will  at  once  attach  thereto.*® 

In  applying  the  principle  that  land  formed  by  alluvion  is  the 
property  of  the  adjoining  owner,  it  is  quite  immaterial,  on  non- 
navigable  streams,  whether  this  alluvion  forms  at  or  against  the 
shore  so  as  to  cause  an  extension  of  the  bank,  or  in  the  bed  of  the 
stream  and  becomes  an  island,^®  and  where  an  island  is  so  formed 
in  the  bed  as  to  divide  the  channel  and  form  partly  on  each  side  of 
the  thread,  the  opposite  sides  belong  to  the  different  proprietors 
and  the  island  should  be  divided  according  to  the  original  thread. 

The  increase  on  streams,  rivers  and  water  fronts  should  be  di- 
vided between  the  owners  of  the  shore,  according  to  their  respec- 
tive frontage,  so  as  to  secure  to  each  the  benefits  which  his  original 
frontage  gave  him,  and  for  this  purpose  the  following  rule  may  be 
employed : 

Measure  the  whole  extent  of  the  ancient  line  on  the  river  and 
ascertain  how  many  feet,  rods,  etc.,  each  proprietor  owned  on  the 
line;  divide  the  newly  formed  line  into  equal  parts  and  appropriate 
to  each  proprietor  as  many  portions  of  this  new  river  line  as  he 
owTied  feet  on  the  old.  Then  to  complete  the  division,  lines  are  to 
be  drawn  from  the  parts  at  which  the  proprietors  respectively 
bounded  on  the  old,  to  the  points  thus  determined  as  the  new 
points  of  division  on  the  newly  formed  shore.  The  new  lines,  thus 
formed,  it  is  obvious,  will  be  either  parallel,  divergent  or  converg- 
ent, according  as  the  new  shore  line  of  the  river  equals,  exceeds  or 
falls  short  of  the  old.^^  This  mode  of  distribution  secures  to  each 
riparian  proprietor  the  benefit  of  continuing  to  hold  to  the  river 
shore  whatever  changes  may  take  place  in  the  condition  of  the 
river  or  the  accretion.  The  rule  will  require  modification  under 
particular  circumstances,  as  for  instance,  if  the  ancient  margin 
has  deep  indentations  or  sharp  projections  the  general  available 
line  on  the  river  ought  to  be  taken,  and  not  the  actual  length  of 
the  margin  as  thus  elongated  by  the  indentations  or  projections. 

A  more  familiar  rule,  and  one  of  general  application  in  the 
West,  is  to  extend  the  original  water  frontage  of  the  respective 
parcels  of  land,  as  nearly  as  practicable  at  right  angles  with  the 

49  Wells  V.  Bailey,  55  Conn.  292.  Batchelder  v.  Keuiston,  51  N.  H.  496 ; 

SODeerfield  v.   Arms,   17   Pick.   41;  Thornton  v.  Grant,  10  R.  I.  477 ;  Jones 

Granger  v.  Avery,  64  Me.  292.  v.  .Johnson,  18  How.  150. 
SlDeerfield  v.   Arms,  17  Pick.  41; 


48  ABSTRACTS  OP  TITLE.  [§46 

oriprinal  shore  lino,  or  with  the  course  of  the  river  to  the  thread 
of  the  stream." 

The  usual  incidents  of  title  attend  property  acquired  by  accre- 
tion.*' The  right  to  alluvial  formation  is  a  vested  one,  inherent  in 
the  property  itself,  and  forms  an  essential  attribute  of  it  in  con- 
sequence of  the  local  situation  of  the  land.**  Reliction  differs  from 
accretion  only  in  that  it  results  from  the  gradual  subsidence  of 
waters,  the  effect  being  the  same."  Accretion  or  reliction  follows 
the  title  of  the  land  contiguous  to  the  alluvion,  but  will  appear 
of  record  only  when  surveys  or  divisions  have  been  made  in  the 
manner  above  indicated. 

§  47.  Avulsion.  Avulsion  is  the  reverse  of  accretion,  being  the 
sudden  removal  or  deposit  of  land  by  the  perceptible  action  of 
water;  and  the  tenn  is  also  applied  to  the  derelict  left  by  the  sud- 
den subsidence  of  water  on  the  seashore  or  on  navigable  rivers. 
The  authorities  are  not  altogether  harmonious,  but  the  majority, 
following  the  common  law,  place  the  title  to  such  derelict  in  the 
sovereign.*^  In  the  case  of  inland  navigable  streams,  the  title  de- 
pends upon  local  laws,  some  States  claiming  the  title  of  the  bed 
of  the  stream,  while  others  concede  it  to  the  riparian  proprietor, 
subject  onlj-^  to  the  public  right  of  navigation.  When  title  extends 
to  the  middle  of  the  stream  the  boundary  remains  as  it  was,  irre- 
spective of  changes  in  the  channel.*'^ 

§48.  Riparian  Titles.  By  the  common  law  of  England  the 
title  to  land  under  water,  as  well  as  the  shore  below  ordinary  high 
water  mark  in  navigable  rivers  and  arms  of  the  sea,  is  vested  in 
the  sovereign  for  the  public  use.  But  as  the  rivers  of  England 
were  comparatively  small,  tide  waters  only  were  regarded  as 
navigable,  and  the  confusion  of  navigable  with  tide  waters,  found 
in  the  monuments  of  the  common  law,  long  prevailed  in  this  coun- 
try, notwithstanding  the  broad  differences  existing  between  the 
extent  and  topography  of  the  American  continent  and  the  British 
islands.  Congress,  by  special  provision,  has  fixed  the  status  of  all 
navigable  streams  and  water  ways  in  what  w^as  formerly  a  portion 

52  Miller  V.  Hepburn,  8  Bush  (Ky.),  120;  Boorman  v.  Sunnuchs,  42  Wis. 
.326.  235. 

53  Gale  y.  Kinzie,  80  Til.  132.  66  2  Black.  Com.  262 ;  Dikes  v.  Mil- 

54  Kennedy  v.   Municipality  No.   2,  Icr,  24  Tex.  417. 

10  La.  Ann.  54;  St.  Clair  Co.  v.  Lov-  67  St.  Louis  v.  Rutz,  138  U.  S.  226; 

injrston,  23  Wall.   (U.  S.)   46.  Boncwits  v.  Wygant,  75  Ind.  41. 

66  Warren    v.    Chambers,    25    Ark. 


§  48]  TITLE   BY   PURCHASE.  49 

of  the  public  domain,  by  declaring  that  they  shall  be  deemed  to 
be  and  remain  public  highways,  yet  it  is  clear  that  Congress  did 
not  employ  the  words  navigable  or  non-navigable  in  the  sense  of 
being  affected  by  the  ebb  or  flow  of  the  tide.  On  the  contrary,  it  is 
obvious  that  the  words  were  employed  without  respect  to  the  tide, 
and  were  applied  to  territory  situated  far  above  tide  waters,  and 
in  which  there  were  no  salt  water  streams.  Viewed  in  the  light 
of  these  considerations,  the  federal  courts  have  adopted  the  rule 
that  proprietors,  under  titles  derived  from  the  United  States, 
bordering  on  streams  not  navigable,  unless  restricted  by  the 
terms  of  the  grant,  hold  to  the  center  of  the  stream,  while  in  case 
of  navigable  rivers  the  title  of  the  riparian  proprietor  stops  at  the 
stream.^* 

Nor  will  the  common  law  apply  to  our  great  fresh  water  lakes, 
for  here  there  is  neither  flow  of  the  tide  nor  thread  of  the  stream, 
and  local  law,  in  most  of  the  states,  appears  to  have  assigned  the 
shores  down  to  ordinary  low  water  mark  as  the  boundary  of  the 
riparian  proprietor.^^ 

This  is  a  subject,  however,  upon  which  there  seems  to  be  much 
diversity,  if  not  confusion,  of  judicial  opinion.  In  some  States 
it  is  held,  that  Avhere  the  government  grants  land  bordering  upon 
a  navigable  stream,  and  there  is  nothing  in  the  grant  which  indi- 
cates an  intention  on  the  part  of  the  government  to  make  any 
reservation,  or  limit  the  grant  to  the  water's  edge,  the  grantee 
takes  to  the  middle  of  the  main  channel  of  such  stream,  subject 
only  to  the  public  easement  of  navigation.^''  This,  it  will  be  per- 
ceived, is  a  restatement  of  the  common-law  rule. 

In  many  jurisdictions  the  courts  have  refused  to  follow  the 
common-law  rule,  holding  that  it  is  inapplicable  to  the  conditions 
existing  in  the  United  States.  Some  of  the  cases  limit  the  grantees 
title  t»  high  water  mark,^^  but  the  majority  fix  it  at  low  water 

58  E.  E.  Co.  V.  Schurmeir,  7  Wall.  The  submerged  lands  are  appurtenant 
(U.  S.)  272;  Forsyth  v.  Small,  7  Biss  to  the  upland,  so  far  as  their  limits 
(C.  Ct.)  201;  Barney  v.  Keokuk,  4  can  be  reasonably  identified.  Lin- 
Otto   (IT.  S.)  324.  coin  v.  Davis,  53  Mich.  375. 

59  Wheeler  v.  Spinola,  54  N,  Y.  60  Johnson  v.  Johnson,  14  Idaho, 
377;  Canal  Commrs.  v.  People,  5  561,  95  Pac.  499;  Ballance  v.  Peoria, 
Wend.  (N.  Y.)  423.  Eiparian  rights  180  111.  29,  54  N.  E.  428;  Franzini  v. 
upon  the  great  lakes  have  been  held  Layland,  120  Wis.  72,  97  N.  W.  499. 
to  be,  in  theory,  the  same  as  upon  61  Park  Comrs.  v.  Taylor,  133  Iowa 
navigable  streams,  and  are  not  gov-  453,  108  N.  W.  927;  State  v.  Port- 
erned  by  any  such  proprietary  divi-  land  Electric  Co.,  52  Orcg.  502,  95 
sions  as  high   and   low   water   mark.  Pac.  722. 

Warvelle  Abstraots — 4 


50  ABSTRACTS   OP   TITLE.  [§  49 

inark,^^  or  the  "water's  edge."  ^*  In  such  cases  the  title  to  the  bed 
of  the  stream  is  in  the  State.  Where  qnostions  of  this  kind  arise 
resoi-t  must  be  had  to  local  usage. 

§49.  Dedication.  A  dedication  is  an  appropriation  of  land 
to  public  usc;^*  the  public  and  not  merely  a  public  corporation 
must  be  the  chief  beneficiary,^^  and,  properly  speaking,  there  can 
be  no  dedication  to  private  uses.^®  Dedication  is  express,  as  when 
made  by  deed  or  other  unequivocal  act  or  declaration ;  or,  implied, 
or  presumed  from  an  acquiescence  in  the  public  use.  The  law 
requires  no  particular  form  or  solemnity  to  constitute  a  valid 
dedication,  the  intention  of  the  owner  being  the  vital  principle, 
and  this  may  be  evidenced  by  the  owner's  acts  or  declarations  and 
the  circumstances  under  which  the  user  has  been  permitted.^'' 

The  question  of  dedication  arises  most  frequently,  in  the  ex- 
amination of  titles,  in  the  construction  of  plats  and  subdivisions, 
and  must  be  determined  by  reference  to  local  law,  as  the  common 
law  dedication  has  in  many  of  the  States  been  supplemented  by 
statute  which  vests  the  legal  title  to  the  dedicated  tract  in  the  mu- 
nicipality.^* At  common  law,  when  the  right  of  the  public  to  the 
use  of  land  rests  upon  no  other  foundation  than  a  dedication  to 
public  uses,  the  easement  vests  in  the  public  while  the  fee  remains 
in  the  original  owner,  and  may  be  conveyed  by  him  to  third  per- 
sons ;  but,  in  such  case,  the  right  of  the  public  to  the  use  is  para- 
mount to  the  title  of  the  owner  of  the  fee,  and  does  not  require  the 
fee  for  its  protection.^^ 

§  50.  Confirmation.  Confirmation,  at  common  law,  is  a  species 
of  conveyance  whereby  an  estate  which  was  voidable  or  inchoate 
is  made  valid  and  certain,  or  where  a  particular  interest  is  in- 

62  Gibson  v.  Kelly,  15  Mont.  417,  ficiaries  as  do  dedications  upon  the 
.39   Pac.   517;    Freeland   v.  Penn.   Ey.       public  generally. 

Co.,   197  Pa.   529,   58   L.   R.   A.   206,  67  Wood  v.  Hurd,  34  N.  J.  L.  87; 

47    Atl.    745;    State   v.    Muncie   Pulp  Buchanan  v.  Curtis,  25  Wis.  99;  Mc- 

Co.,  119  Tenn.  47,  104  S.  W.  437.  Intyre   v.   Storey,   80   111.   127;    Shear 

63  Hahn  v.  Dawson,  134  Mo.  131,  33  v.  Stothart,  29  La.  Ann.  630. 

S.  W.  778.  68  Chicago,  etc.,  R.  R.  v.  Joliet,  70 

64  1  Bou.  Law  Diet.  443.  111.  25;  Downer  v.  R.  R.  Co.,  22  Minn. 
66  Todd   V.   R.   R.   Co.,   19   Ohio   St.       251. 

514.  69  M.  E.  Church  v.  Hoboken,  33  N. 

66  M.  E.  Church  v.  Hoboken,  33  N.  J.  L.  13;  Cincinnati  v.  Wliite,  6  Pet. 

J.  L.   13.     But  reservations   for  pri-  (U.  S.)  431;  compare  Wilson  v.  Sex- 

vate  use  may  be  made,  which  confer  ton,  27  Iowa,  15. 
much  the  same  rights  upon  the  bene- 


§  50]  TITLE   BY   PURCHASE.  51 

creased.  It  is  not  an  original  method  of  passing  title,  and  only 
operates  on  an  existing  estate  or  right  in  lands  by  strengthening 
the  title  of  one  who  already  has,  or  claims,  some  right  or  interest 
therein. 

Though  deeds  of  confirmation  are  in  use  between  individuals, 
the  term,  as  indicative  of  a  form  of  title,  is  usually  applied  to 
those  confirmatory  acts  of  government  whereby  inchoate  or  un- 
certain rights  derived  from  the  national  government  or  from  for- 
eign powers,  are  ratified  and  approved,  and  relates  to  the  origin 
of  title.  From  the  earliest  period  in  the  history  of  the  country, 
claims  to  tracts  of  land,  upon  which  persons  had  settled  and  made 
improvements  in  advance  of  the  public  surveys  and  before  the 
lands  had  been  offered  for  sale,  sometimes  upon  the  express  invi- 
tation of  the  public  authorities  and  sometimes  upon  their  supposed 
acquiescence,  have  been  presented  for  the  equitable  consideration 
of  the  government.  Such  claims,  in  great  numbers,  have  also 
arisen  under  other  governments  from  which  we  have  acquired  ter- 
ritory, with  treaty  stipulations  for  their  protection.  Sometimes 
such  claims  have  been  submitted  to  boards  of  commissioners  for 
approval  or  rejection ;  sometimes  they  have  been  referred  to  the 
judicial  tribunals  for  determination,  and  sometimes  they  have 
been  directly  acted  upon  by  Congress.  A  confirmation  cannot 
strengthen  a  void  title,  but  only  one  that  is  voidable,  and  is  con- 
clusive only  as  between  the  Government  and  the  confirmee.''^*' 

Confirmation,  as  a  basis  of  title,  relates  mainly  to  imperfect 
grants  of  the  French,  Spanish  or  Mexican  governments,  made 
prior  to  the  annexation  of  the  territory  to  the  United  States,  and 
may  consist  of  the  judgment  or  determination  of  a  board  of  com- 
missioners organized  for  that  purpose,  a  judgment  or  decree  of 
the  federal  courts,  or  a  special  act  of  Congress.  Though  it  has 
been  held,  that  a  confirmation  by  law  of  a  claim  of  title  in  public 
lands  is  to  all  intents  and  purposes  a  grant  of  such  lands,'^  yet  it 
seems  that  the  legal  title  to  lands  confirmed  to  a  private  person 
by  act  of  Congress,  or  by  action  of  Government  tribunals,  remains 
in  the  United  States  until  a  patent  has  issued  therefor,  and,  until 
then,  the  confirmee  has  only  an  equitable  title.''^ 

70  Header  v.  Norton,  11  Wall.  442.  the  United  States  should  be  issued  to 

71  Challefoux  v.  Duchanne,  4  Wis.  the  claimant  when  his  claim  should 
554.  have  been  recognized  as  valid  and  en- 

72  LeBean  v.  Armitage,  47  Mo.  138 ;  titled  to  confirmation,  yet  the  patent, 
Amesti  v.  Castro,  49  Cal.  328.  In  the  in  such  eases,  is  only  documentary  evi- 
settlement  of  these  claims  the  law  has  donee  of  the  existence  of  the  title,  or 
generally  provided  that  a   patent   of  of  such  equities  respecting  the  claim 


52  ABSTRACTS   OP   TITLE.  [§  51 

§51.  Occupancy.  Title  by  occiipaiify  forms  a  sub-head  in  l\lr. 
Washburn  \s  luliuirable  work  in  real  property,'^^  but  tliis  iiietliod 
of  acquisition  does  not  now  seem  to  be  recognized  in  the  United 
States,  if  indeed  it  ever  existed.  In  its  broad  sense,  it  is  the  rignt 
or  title  derived  from  an  original  state  of  nature;  hence  the  Amer- 
ican Jiidian  holds  the  use  and  enjoj'ment  of  his  lands  by  occu- 
pancy, and  though  this  title  is  respected  by  the  courts  until  legiti- 
mately extinguished,  it  does  not  extend  to  property  in  the  soil  and 
cannot  be  made  the  subject  of  transfer,  while  the  Government  has 
ever  reserved  the  exclusive  right  to  extinguish  this  title  by  pur- 
chase or  conquest.''^* 

In  its  technical  sense  it  was  applied  to  a  method  of  acquisition 
once  in  vogue  in  England,  where  one  was  tenant  for  the  life  of 
another  who  outlived  him.  The  estate  being  a  freehold  did  not 
go  to  his  personal  representatives,  but  not  being  an  inheritance 
could  not  go  to  his  heirs;  and,  as  a  consequence,  no  one  having  a 
legal  right  to  the  remnant  of  the  estate,  whoever  first  occupied  it 
acquired  such  a  title  by  possession  and  occupancy  that  no  one 
could  dispossess  him.  This  was  a  title  by  occupancy,'^  Provision 
is  made  in  most  of  the  States  for  an  emergency  of  this  kind. 

§  52.  Abandonment  and  Relinquishment,  This  method  of  ac- 
quiring or  losing  title  may  be  found  noted  in  nearly  all  works  on 
real  property,  yet  it  seems  to  occupy  a  most  uncertain  and  indis- 

as  to  justify  recognition  and  eonfirma-  ing  purchases  of  land  by  private   iu- 

tion.     Morrow  v.  Whitney,  5  Otto  (U.  dividuals  from  Indians  and  declaring 

S.)  551;  Langdeau  v.  Hanes,  21  Wall.  that  "if  at  any  time  any  of  the  said 

(U.  S.)   521.  Indians  should  be  inclined  to  dispose 

73  3  Wash.  Real  Prop.  (4th  Ed.)  of  said  lands,"  the  same  "shall  be 
50.  purchased  only"  for  the  Crown,  the 

74  Johnson  v.  Melntosh,  8  "Wheat.  ultimate  dominion  and  sovereignty  be- 
543;  Fletcher  v.  Peck,  6  Cranch.  87.  ing  held  to  reside  in  the  discoverer 
Immediately  after  the  inauguration  of  colonizing  upon  the  continent.  In  ac- 
President  Washington,  he  laid  before  c-ordance  with  this  prineiph',  begin- 
Congress  a  report  from  the  Secretary  ning  with  the  treaty  of  1795,  at  Green- 
of  War,  acknowledging  the  Indian  ville,  the  Indian  title  of  occupancy 
right  of  occupancy,  and  recognizing  has  been  gradually  extinguished  by 
the  principle  of  acquiring  their  claims  the  United  States  in  all  of  the  States 
by  purchase  for  specific  consideration  cast  of  the  Mississippi,  and  in  nearly 
according  to  the  "practice  of  the  late  all  of  the  States  and  Territories  west 
English  colonies  and  government  in  of  same,  leaving,  in  some  cases,  rem- 
purchaaing  the  Indian  claims,"  and  nants  of  tribes,  who  have  been  in- 
the  rule  in  that  respect  laid  down  in  vested  by  Congress  with  allodial  titles. 
the  proclamation  of  Oct.  7,  1763,  by  75  3  Wash.  Real  Prop.  (4th  Ed.)  50. 
the  King  of  Great  Britain,  interdict- 


§52]  TITLE   BY   PURCHASE.  53 

tinct  position.  Easements  and  incorporeal  rights  annexed  to  land, 
may  be  lost  by  abandonment.  So  may  a  homestead.  So  may  an 
incipient  right  to  land,  as  a  location  and  survey,  or  other  merely 
equitable  title  not  perfected  into  a  grant  or  vested  by  deed,  but 
legal  rights,  when  once  vested,  must  be  divested  according  to  law.''^^ 
"Yet,"  says  one  authority,  "if  a  person  having  the  disposing 
power  absolutely,  does  an  act  sufficient  in  itself,  legally  to  divest 
his  title  with  the  express  intention  of  relinquishing  and  abandon- 
ing the  property,  it  is  not  easy  to  perceive  why  he  may  not  do  so. 
Abandonment,  it  is  said,  is  the  relinquishment  of  a  right ;  the  giv- 
ing up  something  to  which  one  is  entitled.  If  the  owner  sees 
proper  to  abandon  his  property,  and  evidences  his  intention  by  an 
act  legally  sufficient  to  vest  or  divest  ownership,  why  may  he  not 
do  so  in  the  case  of  land,  as  well  as  of  a  chattel?  It  might  go  to 
the  Government  instead  of  the  first  occupant,  upon  the  principle 
upon  which  land  escheated  or  became  derelict."''' 

It  has  been  observed,  that  a  man  shall  be  held  to  intend  what 
necessarily  results  from  his  own  acts.  Consequently,  when  prop- 
erty is  abandoned  under  such  circumstances  as  to  leave  no  doubt 
of  the  fact,  no  one  who  has  taken  possession  of  it  can  be  required 
to  relinquish  it ;  but  abandonment  is  a  question  of  fact  for  which" 
no  rule  can  be  formulated,  and  must  be  decided  by  the  circum- 
stances of  each  case.'^  It  would  seem  that  there  is  nothing  in 
principle  to  prevent  the  owner  from  abandoning  his  right  of  prop- 
erty in  land,  provided  the  intention  to  do  so  be  evidenced  by  an 
act  or  deed  legally  sufficient  to  operate  a  divestiture  of  the  title, 
yet  this  will  so  seldom  occur  that  a  discussion  of  it  seems  unneces- 
sary. Ordinarily  when  title  is  asserted  through  this  method,  it 
will  be  found  .to  depend  more  on  long  continued  adverse  possession 
and  rights  conferred  by  the  statute  of  limitations. 

Examples  of  relinquishment  may  be  found  in  the  actions  of 
Congress  where  property,  instead  of  being  granted,  is  relinquished 
to  the  donee,  either  with  or  without  conditions  annexed,  yet  all  of 
the  acts  of  this  character  which  have  come  under  the  observation 
of  the  writer,  may  properly  be  classed  as  dedications,  notwith- 
standing the  express  term  "relinquishment"  is  used  as  the  opera- 
tive word.  This  is  particularly  true  where  provision  is  made  for 
reverter.'^ 

76  4  Kent  Com.  448 ;  Picket  v.  Dowl-  linquishment  in  the  General  Land  Of - 
ing,    2    Wash.    (Va.)    106;    Dikes    v.      fice. 

Miller,  24  Tex.  417.  ''^  Corning  v,  Gould,  16  Wend.  543 ; 

77  Dikes  v.  Miller,  24  Tex.  417.  In  Holmes  v.  R.  R.,  8  Am.  Law  Reg.  716. 
this  ease  the  owner  filed  a  deed  of  re-  79  See  19  U.  S.  Stat.  127. 


54  ABSTRACTS    OK    TITLE.  [§  53 

§  53.  Eminent  Domain.  One  of  the  sovereign  attributes  of  the 
State,  is  the  right  to  subject  the  private  property  of  its  citizens 
to  public  uses,*°  but  with  the  concurrent  obligation  to  make  just 
and  full  eompcMisation  therefor."  Such  right  is  inherent  in  the 
State,  though  usually  reserved  as  well  in  the  organif  law — the  Con- 
stitution ;  and  where  it  is  lodged  to  any  extent  in  corporations,  is 
limited  by  the  uses  for  the  furtherance  of  which,  on  the  ground 
of  public  policy,  it  is  conferred.  Whatever  exists,  in  any  form, 
whether  tangible  or  intangible,**  is  subject  to  the  exercise  of  this 
right  including  the  property  and  franchises  of  incorporated  com- 
panies as  well  as  individuals. 

The  exercise  of  the  right  of  eminent  domain  is  primarily  and 
mediately  the  act  of  the  State;  and  corporations  to  which  it  has 
been  delegated,  and  by  which  it  is  immediately  exercised,  are  but 
instrumentalities  of  the  State,  although  they  may  have,  and  gen- 
erally do  have,  corporate  interests  intermingled  and  growing  out 
of  the  exercise  of  this  sovereign  prerogative.**  Though  the  power 
can  only  be  exercised  for  a  public  use,  it  has  never  been  deemed 
essential  that  the  entire  community  or  any  considerable  portion, 
should  directly  enjoy  or  participate  in  the  benefits  to  be  derived 
from  the  purpose  for  which  the  property  is  appropriated.  It  is 
enough  if  the  taking  tends  to  enlarge  the  resources,  increase  the 
industrial  energies,  and  promote  the  productive  power  of  any 
considerable  number  of  the  inhabitants  of  a  section  of  the  State, 
or  leads  to  the  growth  of  towns  and  the  creation  of  new  channels 
for  the  employment  of  private  capital  and  labor,  such  results  con- 
tributing indirectly  to  the  general  welfare  and  prosperity  of  the 
whole  community.**  Compensation  is  always  a  condition  prece- 
dent to  the  appropriation  of  the  property,**  and  when  land  is 
acquired  by  the  public  for  one  particular  use  no  additional  burden 
can  be  superadded  without  further  compensation.*^ 

§  54.  Title  Acquired  by  Eminent  Domain.  The  general  rule  in 
this  country  is,  that  the  exercise  of  the  power  of  eminent  domain, 

80  United    States    v.   Jones,    109   U.  2   Dill.   376;    Cameron   v.  Supervisors, 
S.  513;   Johnson  v.  R.  R.  Co.,  23  111.  47  Miss.  264;  Paris  v.  Mason,  37  Tex. 
202.  447;    Cook    v.    South    Park    Commis- 
si Chicago  V.  Lamed,  34  111.  203.  sioners,  61  111.  115.     This,  however,  is 

82  Rigney  v.  Chicago,  102  111.  64.  a     constitutional     limitation     of     the 

83  Hatch  V.  R.  R.  Co.,  18  Ohio  St.  right.  United  States  v.  Jones,  109  U. 
92.  S.  513. 

84  Talbot  V.  Hudson,  82  Mass.  417;  86  State  v.  Laveraek,  34  N.  J.  L. 
In  Re  Gas  Co.,  63  Barb.  437.  201 ;  Hatch  v.  R.  R.  Co.,  18  Ohio  St. 

86  Eidemiller    v.    Wyandotte    City,      92 ;  Craig  v.  R.  R.  Co.,  39  N.  Y.  404. 


§  54]  TITLE   BY   PURCHASE.  55 

particularly  when  exerted  in  behalf  of  corporations,  extends  only 
to  the  use  of  the  property  appropriated,  and  does  not  include  the 
fee.*''  The  easement,  however,  is  usually  regarded  as  perpetual, 
and  as  such  forms  the  basis  of  compensation ;  but  should  the  use 
be  abandoned,  the  land,  disencumbered  of  the  easement  imposed 
by  the  appropriation,  will  revert  to  the  holder  of  the  fee.  It  is  a 
cardinal  rule  that  every  statute  in  derogation  of  the  right  of  prop- 
erty, or  that  takes  away  the  estate  of  a  citizen,  is  to  be  con- 
strued strictly,**  and  no  implication  can  be  indulged  in  that  a 
greater  interest  or  estate  is  taken  than  is  absolutely  necessary  to 
satisfy  the  language  and  object  of  the  statute  making  the  appro- 
priation.*® 

But  a  fee  may  be  taken  as  well  as  a  lesser  right  or  interest. 
It  is  not  necessary  that  exact  or  technical  language  should  be 
used  in  a  statute,  for  taking  private  property  for  public  use,  in 
order  to  vest  the  fee  in  the  public,  but  it  must  clearly  appear  that 
it  was  the  intention  of  the  Legislature,  as  disclosed  by  the  act 
itself,  to  take  a  fee.  If  any  remaining  private  ownership  is  incon- 
sistent with  the  use  for  which  the  land  is  taken,  and  compensa- 
tion is  made  for  the  fee,  which  is  also  necessary  for  the  full  use 
of  the  property  under  the  act,  a  fee  will  be  deemed  to  have  been 
taken  in  the  absence  of  express  words.®®  In  some  of  the  States 
the  fee  passes  as  an  incident,®^  and  excludes  any  remaining  rights 
in  the  former  owner,  bud  usually  the  extent  of  interest,  or  quan- 
tity and  duration  of  the  estate  acquired  by  the  exercise  of  this 
power,  is  derived  from  the  specific  act  of  appropriation. 

The  power  is  a  legislative  one,  subject  to  constitutional  restric- 
tions, and  the  only  conditions  requisite  to  its  exercise  are  the  needs 
of  the  public  and  compensation  to  the  owner;  when  these  condi- 
tions exist,  the  right  of  the  State  to  withdraw  property  from 
private  control  and  subject  to  public  use  whatever  interest  or 
estate  is  necessary  to  accomplish  the  intended  purpose,  is  com- 
plete and  perfect,®^  and  this  interest,  according  as  the  Legislature 
may  determine,  may  consist  of  an  estate  for  years,  for  life,  a  mere 
easement,  a  conditional  fee,  or  a  fee  simple  absolute.®*    It  would 

87  Morris  v.  Turnpike  Koad,  6  Bush  91  Troy   v.   R.   R.   Co.,  42   Vt.   265 ; 
(Ky.),  671;  R.  R.  Co.  v.  Burkett,  42  Challis  v.  R.  R.  Co.,  16  Kan.  117. 
Ala.  83;  Cooley's  Const.  Lira.  559.  92  Dingley    v.    Boston,    100    Mass. 

88  Sharp  v.  Spear,  4  Hill.  76.  544;   Haldeman  v.  R.  R.  Co.,  50  Pa. 

89  Cemetery  v.  R.  R.  Co.,  68  N.  Y.  St.  425;  Gicsy  v.  B.  R.  Co.,  4  Ohio 
591.  St.  308. 

90  Park  Commissioners  v.  Arm-  93  Heyward  v.  New  York,  3  Seld. 
strong,  45  N.  Y.  234.  314;   Cooley's  Const.  Lim.  §  558. 


56  ABSTRACTS  OP  TITLE.  [§  54 

therefore  appear  that  the  act  of  appropriation,  whenever  the  title 
has  passed  by  the  exercise  of  this  power,  together  with  such  of 
the  condemnatory  proceedings  as  may  be  necessary  to  show  the 
extent  of  land  taken,  are  necessary  links  in  the  chain  of  title,  and 
should  be  duly  set  forth  in  the  abstract. 

§55.  Escheat.  In  its  original  acceptation,  escheat  was  the 
right  of  the  lord  of  the  fee  to  enter  same  when  it  became  vacant 
by  extinction  of  the  blood  of  the  tenant.  It  was  one  of  the  inci- 
dents of  feudal  tenure,  and  is  still  occasionally  mentioned  as 
marking  the  feudal  origin  of  American  land  titles.  Nothing  but 
the  name,  however,  is  feudal,  and  is  only  another  instance  in 
which,  in  our  land  system,  a  word  is  applied  in  a  sense  far  dif- 
ferent from  its  original  moaning,  suggesting  ideas  which  have  long 
been  exploded. 

Escheat,  in  the  United  States,  depends  upon  positive  statutes. 
It  does  not  follow  as  a  matter  of  right,  l)ut  of  expediency.  The 
lord  of  the  fee,  holding  the  ultimate  title,  might  with  propriety 
assert  his  ownership,  but  no  such  right  can  be  claimed  by  the 
State,  nor  is  the  idea  comjjatible  with  the  full  property  in  land 
held  under  allodial  title.  It  is  however,  a  universal  rule  of  civi- 
lized society  that  when  the  deceased  owner  has  left  no  heirs,  his 
property  should  vest  in  the  public  and  be  at  the  disposal  of  the 
Government,^*  and  by  the  general  rule  of  the  common  law,  all 
real  property'-  capable  of  use  and  possession,  and  having  no  other 
acknowledged  owner,  is  in  theory  vested  in  the  king  as  the  head 
and  sovereign  representative  of  the  Nation;  so  the  State,  in  its 
right  of  sovereignty,  is  said  to  possess  the  ultimate  property  of 
all  lands  within  its  jurisdiction.  When  the  owner  dies  intestate 
and  leaving  no  inheritable  blood,  the  lands  vest  immediately  in 
the  State  b}^  operation  of  law  ;^^  but  some  proceeding  is  necessary 
on  the  part  of  State  to  assert  the  title  thus  acquired,^  which  is 
accomplished  by  a  procedure  sometimes  termed  "inquest  of  of- 
fice," the  various  steps  being  prescribed  by  statute,  and  culminat- 
ing in  a  decree.^''  This  decree,  together  with  the  preliminary 
proceedings,  forms  the  record  evidence  of  title  derived  in  this 
manner.     The  State  on  taking  lands  by  escheat,  takes  the  same 

94Bou.    Law    Diet.    537;     4    Kent  127  Ky,  824,  107  S.  W.  247,  15  L.  R. 

Com.  '425.  A.   (N.  S.)  379. 

96  People    V.    ConkUn,    2    Hill,    67 ;  97  An   escheat   may  be  asserted  by 

Sands    v.    Lynham,    27    Gratt.    (Va.)  an   action  of  ejectment  in  the  usual 

291.  form. 

96  Louisville  School  Board  v.  King, 


§  56]  TITLE  BY   PURCHASE.  57 

title  as  the  person  last  seized,  and  none  other,  subject  to  the  same 
trusts,  incumbrances,  charges  and  services  to  which  the  prop- 
erty would  have  been  subject  had  it  descended  to  heirs,^^  ^j^g  g^^te 
being  for  this  purpose  a  statutory  heir  in  default  of  known  kin- 
dred.^® 

§56.  Confiscation.  Closely  allied  to  escheat,  but  resting  on  a 
different  foundation,  is  confiscation,  being  the  right  to  appro- 
priate to  the  use  of  the  State,  the  property  of  alien  enemies  dur- 
ing war.  Respecting  this  power  of  the  Government,  no  doubt 
can  be  entertained.  That  war  gives  to  the  sovereign  full  right  to 
take  the  persons  and  property  of  the  enemy  wherever  found  is 
conceded.  The  mitigation  of  this  rigid  rule,  which  the  humane 
and  wise  policy  of  modern  times  has  introduced  into  practice, 
will  more  or  less  affect  the  exercise  of  this  right,  but  can  not  im- 
pair the  right  itself.^  Save  in  a  few  instances,  during  the  revolu- 
tionary period,  this  right  has  been  restricted  to  seizure  of  personal 
property  until  the  late  civil  war,  when  by  act  of  Congress  of  July 
17,  1862,  the  right  of  confication  of  real  estate  was  again  asserted. 
But  concurrently  with  the  passage  of  this  act.  Congress  also 
adopted  a  joint  resolution  explanatory  of  it,  whereby  it  was  re- 
solved that  no  punishment  or  proceedings  under  the  act  should  be 
construed  so  as  to  work  a  forfeiture  of  the  real  estate  of  the 
offender  beyond  his  natural  life,  and  courts  when  passing  upon 
the  question  have  uniformly  decided  that  confiscation  proceedings 
in  effect,  reach  only  the  life  estate  of  the  owner.^  The  condemna- 
tion goes  to  the  whole  estate,  however,  and  extinguishes  all  the 
rights  possessed  by  the  original  owner,  leaving  in  him  no  estate 
or  interest  of  any  description  which  he  can  convey  by  deed,  and 
no  power  which  he  can  exercise  in  favor  of  another.  The  for- 
feiture is  complete  as  long  as  it  lasts,  and  the  proviso,  by  way  of 
grace,  gives  back  the  land  to  his  heirs  upon  his  death.^ 

98  Trust  Co.  V.  People,  1  Sandf.  (U.  S.),  202;  French  v.  Wade,  12 
Ch.  139.  Otto  (U.  S.),  132;  Pike  v.  Wassell,  9J 

99  Wallace  v.  Harmsted,  44  Penn.  U.  S.  711.  In  England  attainder  of 
St.  492.  treason    worked    corruption    of    blood 

1  Brown  v.  United  States,  8  Cranch  and    perpetual    forfeiture    of    the    es- 

(U.  S.),  110.  tate  of  the  person  attained  to  the  dis- 

2Biglow    V.    Forrest,    9    Wall.    (U.  inherison    of    his    heirs.      When    the 

S.)    339;    Dewey   v.   McLain,   7   Kan.  Federal  Constitution  was  formed,  this 

126;  Day  v.  Mieon,  18  Wall.   (U.  S.),  was  felt  to  bo  a  great  hardship,  and 

156.  even  rank  injustice.     For  this  reason 

3  Wallach    v.    VanRiswick,    2    Otto  it  was  ordained  that  no  attainder  of 


58  ABSTRACTS   OF   TITLE.  [§  57 

§  57.  Forfeiture.  The  term  forfeiture  is  used,  as  between  indi- 
viduals, to  denote  tlic  method  by  which  an  interest  or  estate  in 
lands  reverts  to  a  former  owner  by  operation  of  law,  as  by  a 
breach  of  condition  in  a  deed  or  lease.  Forfeitures  are  not 
favored  in  law,  and  courts  eagerly  seize  hold  of  any  circumstances 
by  which  the}-  may  be  defeated,  and  where  adequate  compensation 
can  be  made,  the  law  in  many  cases,  and  equity  in  all  cases,  dis- 
charges the  forfeiture  upon  such  compensation  being  made.* 

In  its  more  common  acceptation  it  is  the  means  by  which  the 
property  of  the  citizen  inures  to  the  benefit  of  the  State  through 
Ihe  violation  of  law,  and  in  the  Unted  States  occurs  only  in  ease 
of  confiscation  or  seizure  for  taxes.  In  either  case  it  is  in  the 
nature  of  a  penalty,  and  results  as  a  necessary  incident  from  our 
reciprocal  duties  and  obligations.  As  a  method  of  acquiring  title 
it  is  viewed  with  disfavor  and  is  of  doubtful  effect.  It  is  attended 
with  greater  formalities  than  any  other  form  of  purchase,  and 
the  title  derived  through  it  is  liable  to  be  defeated  by  a  vast  num- 
ber of  contingencies.  Ordinarily,  titles  resting  solely  on  rights 
derived  through  forfeiture,  for  non-payment  of  taxes  or  other- 
wise, are  to  be  viewed  with  suspicion  and  accepted  with  caution, 
experience  having  demonstrated  in  many  cases  their  unsubstantial 
nature. 

treason    should     work    corruption    of  4  Life   Ins.    Co.    v.    Norton,   6    Otto 

blood  or  forfeiture  of  estate,  except       (IT.  S.)  234. 
during  the  life  of  the  person  attained. 


CHAPTER  V. 

SOURCES  OF  INFORMATION. 

§  58.  Records.  §  66.  Loss  or  destruction  of  records. 

§  59.  Depositories  of  records.  §  67.  Official  aids  to  search. 

§  60.  The  right  of  inspection  of  rcc-       §  68.  Grantor  and  grantee  indexes. 

ords.  §  69.  Notice  lis  pendens. 

§  61.  Doctrine  of  notice.  §  70.  Plaintiff     and     defendant     in- 

§  62.  Constructive  notice.  dexes. 

§  63.  Actual  notice.  §  71.  Tax  records. 

§  64.  Registration.  §  72.  Official  certificates. 

§  65.  Effect  of  recording  acts.  §  73.  Church  and  parish  records. 

§  58.  Records.  An  abstract  of  title,  as  compiled  in  the  United 
States,  is  an  abridgement  of  the  public  records,  to  which  it  also 
bears  the  relation  of  a  special  index,  they  being  the  great  reposi- 
tories of  title,  and  the  source  from  whence  the  examiner  draws 
the  greater  part  of  his  information. 

A  record,  it  has  been  said,  is  a  written  memorial  made  by  a 
public  officer,  authorized  by  law  to  perform  that  function,  and 
intended  to  serve  as  evidence  of  something  written,  said,  or  done.^ 
The  acts  of  Congress  and  of  the  State  Legislatures  are  the  highest 
types  of  records,  while  the  proceedings  and  detenninations  of  the 
courts  are  scarcely  less  in  dignity,  and  by  statutory  enactment  the 
enrollment  of  deeds,  though  made  primarily  to  perpetuate  the 
memory  of  the  facts  which  they  recite,  is  given  the  operation  and 
effect  of  records.  These  records  are  of  controlling  efficacy  in  the 
State  where  made,  and  by  the  Constitution  of  the  United  States 
it  is  declared  that  "full  faith  and  credit  shall  be  given  in  each 
State  to  the  public  acts,  records,  and  .judicial  proceedings  of  every 
other  State. ' '  In  matters  of  sales  and  conveyances  of  land,  records 
acquire  a  new  importance  from  the  peculiar  American  doctrine  of 
constructive  notice,  which  easts  a  knowledge  of  theii-  contents  and 
import  upon  subsequent  purchasers,  and  forms  one  of  the  chief 
incentives  to  the  production  of  abstracts. 

§  59.  Depositories  of  Records.  Under  the  general  name  of  rec- 
ords are  classed  all  official  acts  of  the  public  officers  in  relation  to 

1  2  Bou.  Law  Diet.  424. 

59 


60  ABSTRACTS   OP   TITLE.  [§  59 

title;  the  adjudications  and  determinations  of  the  courts;  minis- 
terial acts  of  ofificers  in  furtherance  of  the  taxing  power,  and  in- 
cidentally all  papers,  whether  filed  or  engrossed,  which  affect  title 
by  relation  and  through  the  operation  of  law.  Popularly  the 
term  is  applied  to  the  registry  of  deeds  rather  than  to  the  other 
classes  mentioned ;  but  all  come  within  its  signification,  so  far, 
at  least,  as  the  purpose  of  abstract  making  is  concerned,  and 
from  all  of  these  varied  sources  the  examiner  draws  the  details 
which  go  to  make  up  a  full  exposition  of  the  title.  The  registry 
of  deeds  furnishes  the  most  fruitful  field,  and  the  great  bulk  of 
the  examination  is  compiled  therefrom,  but  recourse  must  also  be 
had  to  the  government  archives;  the  transactions  of  the  State 
Legislature;  the  files  of  all  the  courts,  State  and  Federal;  ordi- 
nances of  the  municipality,  and  acts  of  the  officers  exercising  the 
ministerial  duties  of  taxation.  Though  easily  enumerated,  these 
sources  cover  a  wide  field,  and  one  which  requires  no  ordinary 
ability  to  fully  encompass. 

§  60.  The  Right  of  Inspection  of  Records.  The  right  to  inspect 
and  copy  or  abstract  the  public  records  is  undoubted  to  those  who 
have  a  direct  interest  therein.^  Not  only  does  such  a  right  result 
from  the  plain  intendment  of  the  recording  acts  with  reference  to 
the  matter  of  notice,  but  it  has  also  been  assured,  in  a  majority 
of  the  States,  b}'  statutory  enactments  providing  for  the  "free 
examination"  of  such  records  b}'  all  persons  having  occasion  to 
inspect  them  for  any  lawful  purpose.  But  until  very  recent  years 
the  question  has  usually  arisen  only  whore  the  right  claimed  was 
to  inspect  or  obtain  a  copy  of  some  particular  document,  or  of 
documents  relating  to  a  given  transaction  of  title.  "With  respect 
to  the  right  of  the  abstract  maker  to  copj^  or  abstract  the  entire 
records  of  a  county  for  speculative  purposes,  the  question  may  be 
considered  of  such  modern  origin  as  not  to  have  been  contem- 
plated or  covered  by  the  common  law  authorities  relating  to  the 
inspection  of  records ;  ^  and,  while  it  has  been  raised  to  some  extent 
by  recent  decisions,  it  has  not  yet  become  shaped  into  any  general 
definite  rule  or  policy  of  law. 

It  must  be  remembered  that  the  abstract  maker  does  not  ask  for 

2  Brewer  v.  Watson,  61  Ala.  310;  of  the  power  of  the  court  to  enforce 
People  V.  Richards,  99  N.  Y.  620;  inspection  of  public  documents  have 
Lum  V.  McCarty,  39  N.  J.  L.  287;  been  those  where  a  party  has  sought 
Boylan  v.  Warren,  39  Kan.  301.  evidence    for   the   prosecution    or    de- 

3  In  England,  the  occasions  which  fense  of  his  rights  in  pending  litiga- 
generaUy   have   required   the   exercise  tion. 


§60] 


SOURCES   OF    INFORMATION. 


61 


an  inspection  of  a  record  and  abstract  thereof,  relating  to  lands 
in  which  he  claims  to  have  title  or  interest,  or  concerning  which 
lie  desires  information  in  contemplation  of  acquiring  some  right 
or  interest,  either  by  purchase  or  otherwise,  and,  except  when  pur- 
suing some  special  examination,  he  is  not  the  agent  or  attorney  of 
parties  seeking  information  because  interested  or  likely  to  become 
so.  On  the  contrary,  the  right  is  based  upon  neither  a  present  nor 
prospective  interest  in  lands,  either  personally  or  as  a  repre- 
sentative of  others  who  have,  but  is  for  his  own  future  gain 
in  furnishing  information  therefrom  to  third  parties  for  a  con- 
sideration. In  view  of  these  facts  the  volume  of  authority  for- 
merly leaned  toward  a  denial  of  any  right  in  the  abstract  maker 
to  demand  the  inspection  and  free  use  of  public  records,  holding 
that  the  statutes  permitting  free  inspection  were  not  designed 
to  allow  individuals  the  privilege  of  copying  or  abstracting  the 
entire  records  of  a  public  office  in  which  they  have  no  direct  or 
special  interest,  or  of  using  them  continuously  for  the  purpose 
of  obtaining  information  to  be  used  for  speculation  and  gain  in 
their  private  business.* 


4  Bean  v.  People,  7  Colo.  200 ;  Cor- 
mack  V.  Woleott,  37  Kan.  391;  Boy- 
Ian  V.  Warren,  39  Kan.  301.  In  Buck 
V.  Collins,  51  Ga.  391,  it  was  said, 
that  the  right  to  make  abstracts  is 
a  perversion  of  the  purpose  for  which 
the  books  are  kept,  and  in  Eandolph 
V.  State,  82  Ala.  527,  the  court  says, 
that  the  right  of  free  examination  is 
the  rule,  and  the  inhibition  of  the 
privilege  when  the  purpose  is  specu- 
lative, is  the  exception.  So  in  Brewer 
V.  "Watson,  71  Ala.  299,  it  is  said: 
"It  is  not  the  unqualified  right  of 
every  citizen  to  demand  access  to,  and 
inspection  of  the  books  or  documents 
of  a  public  oflSce,  though  they  are  the 
property  of  the  public  and  preserved 
for  public  uses  and  purposes.  The 
right  is  subject  to  the  same  limitation 
and  restriction  as  the  right  to  an  in- 
spection of  the  books  of  a  corporation, 
which  strangers  can  not  claim,  and 
which  is  only  allowed  to  the  corpo- 
rators, when  a  necessity  for  it  is 
shown,  and  the  purpose  does  not  ap- 
pear to  be  improper;     ♦     •     »     and 


the  individual  who  claims  access  to 
public  records  and  documents  can 
properly  be  required  to  show  that  he 
has  an  interest  in  the  document  which 
is  sought,  and  that  the  inspection  is 
for  a  legitimate  purpose. 

In  other  States  the  same  general 
doctrine  has  been  announced  in 
equally  emphatic  terms.  Thus,  The 
Prince  George 's  County  Abstract 
Company  was  incorporated  by  an  act 
of  the  legislature  of  Maryland,  whicli 
provided  "that  said  corporation  may 
make  and  may  procure  copies  and  ab- 
stracts from  the  public  records  of  the 
State  and  gather  information  there- 
from, and  from  other  sources  relat- 
ing to  conveyance  of  property,  real 
and  leasehold,  make  indexes  of  all 
deeds,  mortgages,  judgments,  decrees 
and  other  records  within  the  State  of 
Maryland  and  may  examine  and  guar- 
antee titles  to  property,  real  and  per- 
sonal. ' '  Under  this  liberal  legisla- 
tion the  Supreme  Court  of  Maryland, 
in  Belt  v.  Al)stract  Co.,  73  Md.  289, 
declared  that  said  company  had   not 


62  ABSTRACTS  OP  TITLE.  [§  60 

It  is  difficult,  however,  to  reconcile  the  reasoning  in  some  of 
the  cases  with  the  spirit  and  general  policy  of  the  law,  or  with 
the  just  claims  of  business  convenience.  The  great  utility  of  the 
professional  examiner  is  a  recognized  fact,  and  with  the  constantly 
increasing  complication  of  land  titles  his  assistance  in  their 
proper  adjustment  has,  in  many  localities,  become  an  absolute 
necessity.  The  position  which  he  occupies  in  the  world  of  com- 
merce is  second  to  none  in  importance  and  responsibility,  and  the 
free  and  unhindered  inspection  of  the  records  should  be  accorded 
him  as  a  matter  of  public  policy  and  in  furtherance  of  great  pub- 
lic interests,  if  not  as  a  matter  of  legal  right. 

Not  the  least  among  the  reasons  assigned  in  the  foregoing  class 
of  cases  is  solicitude  for  the  preservation  of  the  sources  of  infor- 
mation. The  public  records,  it  is  said,  are  the  repositories  of 
the  rights  of  persons  and  of  propei'ty,  and  in  many  eases  hold 
the  only  evidence  of  either,  and  the  law  imposes  upon  courts  and 
ministerial  officers  the  duty  of  their  secure  and  careful  protection 
and  preservation ;  a  protection  and  preservation  which  might  be 
greatly  jeopardized  if  every  citizen  at  his  will  and  pleasure  should 
be  permitted  to  inspect,  examine  and  copj'  them  in  his  own  way.* 
It  must  be  admitted  that  the  argument  is  weak  when  applied  to 
any  particular  class  as  contradistinguished  from  the  general  pub- 
lic, and  fanciful  when  applied  to  actual  facts  as  they  are  presented 
in  every  county  in  the  country.  Mutilations  of  records  are  rare, 
and  when  instances  of  this  kind  do  occur,  it  will  almost  invariably 
be  found  that  the  mutilation  has  been  accomplished  by  some  per- 
son having  a  special  interest  therein — in  other  words,  by  one 
whom  the  law  saj's  may  inspect  them.  It  is  a  significant  fact  that 
the  case  in  which  this  theory  was  first  advanced,®  and  which  has 
served  as  the  keynote  for  every  subsequent  decision  of  similar 
import,  has  since  been  overruled  in  the  court  where  it  was  pro- 
nounced.'' As  a  matter  of  fact,  no  class  of  the  community  are 
more  directly  interested  in  the  preservation  and  integrity  of  the 
records  than  the  compilers  of  abstracts,  and  on  more  than  one 
occasion    their    indices    and    references    have    been    brought    into 

tlic  right  to  make  Kcarchcs  and  ab-  the  judges  afterward  granted,  as  an 
stracts  of  title  for  their  business  act  of  grace,  what  they  denied  the 
without  payment  to  the  clerk  of  his  petitioner  to  be  entitled  to  as  a  mat- 
statutory  fees.  ter  of  right.     See,  also,  Ee  Caswell's 

6  Webber  v.  Townley,  43  Mich.  534;  Request,  18  R.  I.  835. 

Bean  v.  People,  7  Colo.  200 ;  Cormack  6  Webber  v.  Townley,  43  Mich.  534. 

V.    Wolcott,    37    Kan.    391 ;    Buck    v.  7  Burton  v.  Tuite,  78  Mich.  363 ;  29 

Collins,  51  Ga.  391;   In  Re  McLean,  Am.  L.  R«g.  60. 
8    Reporter   813.      In   the   latter   case 


§  60a]  SOURCES  OP  information.  63 

requisition  to  protect  public  interests  and  prevent  confusion  of 
titles.* 

§60a.  Continued— Later  Views.  While  the  rule  stated  in  the 
preceding  paragraphs  is  still  maintained  in  some  jurisdictions,  a 
more  liberal  view  has  been  taken  of  this  matter  in  many  States 
and  the  rule  has  been  announced  that,  as  the  records  are  public, 
every  person  has  the  right  to  inspect,  examine  and  copy  them,  at 
all  reasonable  times  and  in  a  proper  way;  that  ministerial  officers 
charged  with  the  custody  of  hooks  and  records  cannot  deny 
access  to  their  offices  or  the  books  therein  contained  to  any  per- 
son coming  there  at  a  proper  time  and  in  an  orderly  manner,® 
and  that  any  person  so  desiring  has  a  right  to  examine  such  books 
and  records  without  charge,  not  as  a  privilege  or  favor,  but  as 
a  matter  of  right. ^^  Such  officers  should  have  the  right  to  make 
reasonable  restrictions  as  to  the  manner  in  which  the  books  shall 
be  examined,  and  to  exercise  a  discretion  as  to  the  matter  of  the 
admission  of  persons  to  examine  and  copy  when  their  presence, 
by  reason  of  numbers,  would  interfere  with  the  performance  of 
official  duties  or  the  convenience  of  the  general  public,^^  but  this 
should  be  the  extent  of  their  powers  of  discrimination  or  refusal. 
In  some  of  the  states  statutory  enactments  have  further  tended 
to  allow  the  free  inspection  of  records,  but  the  subject  is  still  in- 
volved in  much  doubt  and  uncertainty  and  a  review  of  the  au- 
thorities shows  a  sad  lack  of  harmony  in  the  decisions. 

In  some  of  the  cases  in  which  the  right  of  free  inspection,  and 
privilege  of  copying  has  been  declared,  the  privilege  has  been 
restricted  to  such  persons  as  are  employed  to  examine  or  guar- 
antee a  particular  title,  and  while,  as  to  such  persons,  the  right 
is  freely  conceded  it  is  denied  to  others.^^  Indeed,  this  seems 
to  be  the  prevailing  tendency.  That  is,  to  permit  free  examina- 
tions so  far  as  they  relate  to  current  transactions  but  to  withhold 

a  A  notable  example  is  afforded  by  Townshend  v.  Eeg.  of  N.  Y.,  7  How. 

the    great   fire    in    Chicago,    in    1871.  Prae.    (N.  Y.)    318;   Burton  v.  Tuite, 

This   conflagration   entirely   destroyed  78  Mich.  363;   Hansen  v.   Eichstaedt, 

the   public   records,   and   the   ante-fire  69  Wis.  538;  Newton  v.  Tisher,  98  N. 

indices  of  the  local  abstract  makers  C.   20;    and  see  State   v.   Eachac,   37 

now   furnish   the   only   connected   his-  Minn.  372,  35  N.  W.  7;   Day  v.  But- 

tory  of  land  titles  in  the  county  prior  ton,  96  Mich.  600,  56  N.  W.  3. 
to  that  event.  "  People  v.  Richards,  99  N.  Y.  620; 

9  People  V.  Eiehards,  99  N.  Y.  620 ;  State  v.  McMillan,  49  Fla.  243,  38  So. 

State  V.  Rachac,  37  Minn.  372;   Bur-  666. 
ton  V.  Tuite,  78  Mich.  363.  12  Barber    v.   Guaranty   Co.,    53    N. 

lOLum  V.  McCarty,  39  N.  J.  L.  287;  J.  Eq.  158. 


64  ABSTRACTS   OF   TITLE.  [§  60a 

the  right  to  inspect  or  copy  all  of  the  records  for  the  purpose 
of   compiling   an    independent   set   of   abstract   books.^' 

With  respect  to  the  public  records  of  the  United  States  the 
necessity  of  interest,  as  at  common  law,  has  been  done  away  with 
by  statute,"  and  any  person  may  examine  them  or  take  memo- 
randa therefrom,^^  while  the  courts  of  some  States  have  made  a 
distinction  between  court  records  and  county  records,  holding 
that  the  judicial  records  of  the  State  should  always  be  accessible 
to  the  people  for  all  proper  purposes,  under  reasonable  restric- 
tions as  to  the  time  and  manner  of  examining  them.^®  In  the 
absence  of  any  statute  regulating  the  matter,  there  can  be  no 
doubt  as  to  the  power  of  a  court  to  prevent  an  improper  use  of  its 
records,  and  hence  it  may  deny  a  request  to  examine  same  from 
motives  of  mere  curiosity,  or  to  gratify  spite,  or  for  the  purpose 
of  creating  public  scandals;"  but  when  the  object  is  legitimate 
and  serves  a  proper  purpose,  there  is  no  good  reason  for  denying 
the  right  of  inspection,  and  this  is  particularly  true  after  the 
final  hearing  or  determination  of  a  cause. ^* 

§  61.  Doctrine  of  Notice.  The  principle  is  well  established, 
that  a  purchaser  of  land  is  chargeable  with  notice,  by  implication, 
of  every  fact  affecting  the  title,  which  could  be  discovered  by 
an  examination  of  the  deeds  or  other  muniments  of  title  of  his 
vendor,  and  of  every  fact,  as  to  which  the  purchaser,  with  rea- 
sonable prudence  or  diligence,  ought  to  become  acquainted.  If 
there  is  sufficient  contained  in  any  deed  or  record,  which  a  pru- 
dent purchaser  ought  to  examine,  to  induce  an  inquiry  in  the 
mind  of  an  intelligent  person,  he  is  chargeable  with  the  knowl- 
edge or  notice  of  the  facts  so  contained,  and  generally,  a  party 
in  possession  of  certain  information  will  be  chargeable  with  a 
knowledge  of  all  facts  which  an  inquiry  suggested  by  such  in- 
formation, diligently  prosecuted,  would  have  disclosed  to  him.^* 
The  purchaser  must  be  presumed  to  investigate  the  title,  and  to 
examine  every  deed  or  instrument  forming  a  part  of  it,  especially 
if  recorded,^"  and  to  make  inquiries  in  pais  as  well  as  look  at 
records.^^ 

13  See,  State  v.  Grimes,  29  Nev.  50,  19  Cambridge    Baiik    v.    Delano,    48 

84  Pac.  1061,  5  L.  R.  A.   (N.  S.)  545.  N.  Y.  326;  Wilson  v.  Hunter,  30  Ind. 

14-9  U.  S.  Stat.  292.  466. 

16  E€  Chambers,  44  Fed.  Rep.  786.  20  Acer  v.  Weseott,  46  N.  Y.  384; 

16  Re  Caswell's  request,  18  R.  I.  Chicago  &  R.  R.  v.  Kennedy,  70  111. 
835.  350. 

17  Schmiidding  v.  May,  85  Mich.  1 ;  21  Littleton  v.  Giddings,  47  Tex. 
Cowley  V.  Pulsifer,  137  Mass.  392.  109. 

18  See  cases  last  cited. 


§  62]  SOURCES   OP    INFORMATION.  65 

Notice  is  classified  as  either  actual  or  constncctive;  but  there 
is  no  difference  between  them  in  regard  to  the  legal  consequence 
or  effect.^^ 

§62.  Constructive  Notice.  It  is  scarcely  possible  to  declare 
a  priori  what  shall  be  deemed  constructive  notice,  because  un- 
questionably that  which  may  not  aifect  one  man  may  be  abun- 
dantly sufficient  to  affect  another,  and  Sugden  observes,  "that 
every  one  who  has  attempted  to  define  what  it  is,  has  declared  his 
inability  to  satisfy  even  himself."  ^^  The  accepted  legal  definition 
is,  that  constructive  notice  is  a  legal  inference  from  established 
facts.^*  Where  a  party  has  actual  notice  of  anything  by  which  the 
title  to  property  is  affected,  or  has  the  means  of  knowing  the  same, 
he  is  charged  with  constructive  notice  of  facts  and  instruments  to 
a  knowledge  of  which  he  would  have  been  led  by  inquiry,  and 
which  would  have  revealed  the  true  state  of  the  title.^^  Such 
would  also  be  the  case  when  a  party  has  designedly  abstained  from 
inquiry  for  the  veiy  purpose  of  avoiding  notice;  for  the  policy 
of  law,  and  the  safety  of  the  public,  forbids  a  person  to  deny 
knowledge,  while  he  is  so  dealing  as  to  keep  himself  ignorant,  and 
it'  he  omit  to  make  examination  and  inquiry  in  a  proper  case  he  is 
conclusively  charged  with  negligence,  and  with  notice  of  the  de- 
fects in  the  title.^e 

In  this  country  it  has  been  uniformly  held  that  the  record  of  a 
conveyance,  executed  in  conformity'  to  law,  operates  as  construc- 
tive notice  to  all  subsequent  purchasers  or  incumbrancers,  claim- 
ing under  the  same  grantor,  of  any  estate,  either  legal  or  equit- 
able, in  the  same  property,  provided  the  conveyance  be  one  which 
the  law  requires  or  authorizes  to  be  recorded ;  ^"^  and  such  pur- 
chaser is  charged  with  the  duty  of  exercising  diligence  in  making 
proper  examination  touching  the  rights  and  equities  of  others, 
where  the  record  shows  that  others  have  such  rights,  in  the  lauds 
he  is  about  to  purchase.^^ 

A  subsequent  purchaser  is  not  chargeable  with  constructive  no- 
tice of  all  instruments  of  record,  by  whomsoever  made,  but  only  of 

22  Hill  V.  Epley,  31  Pa.  St.  o'^5;  162;  Cuuuiiigliam  v.  I'attee,  99  Mass. 
Morrison  v.  Kelly,  22  111.  610;  Elli-  248;  and  sec,  1  Warvelle  on  Vi-ndors, 
son  V.  Wilson,  36  Vt.  67.  316,  and  cases  cited. 

23  2  Sugden  on  Vendors,  570  (Am.  27  1  Story  Eq.  Jur.  §•403;  Tilton 
Ed.).  V.  Hunter,  29  Maine,  29;   Crockett  v. 

24  Birdsall  v.  EusseU,  29  N.  Y.  220.  McGuire,  10  Mo.  34. 

25  Knap  v.  Bailey,  79  Me.  195;  Car-  28  Brush  v.  Ware,  15  Pet.  ( U.  S.J 
ter  V.  Hawkins,  62  Te.x.  393.  110. 

26  Barnard    v.     Campau,    29    Mich. 

Warvelle  Abstracts— 5 


66  ABSTRACTS   OF   TITLE.  [§  62 

such  as  lit'  in  the  apparent  chain  of  title,  or  have  been  made  by 
one  in  some  way  connected  with  the  property  involved  in  interest, 
and  brougiit  to  his  notice.^^  Hence  he  is  not  bound  to  look  for 
conveyances  by  or  judgments  against  one  in  whom  the  record 
shows  no  title. 

The  doctrine  of  constructive  notice  under  registration  laws  has 
always  been  regarded  as  a  harsh  necessity,  and  the  statutes  which 
create  it  have  always  been  subjected  to  a  rigid  construction.'® 
Tlicreforc,  only  tlie  facts  as  they  appear  on  the  face  of  the  record 
arc  (Iccnu'd  binding  on  subsequent  purchasers,  and  if,  from  any 
cause,  the  real  facts  are  there  misstated,  as  if  the  wrong  land  is 
by  mistake  described,  or  the  sum  for  which  a  mortgage  is  given  is 
inadvertently  omitted,  a  subsequent  purchaser  in  good  faitli,  rely- 
ing upon  wliat  is  shown,  will  not  be  affected  by  the  error  or  omis- 
sion.'^ 

Tiu'  recording  acts,  for  the  purpose  of  information  and  con- 
structive notice,  have  not  altered  or  abolished  the  rules  of  equity 
in  relation  to  actual  or  constructive  notice  by  other  means  than 
the  recording  aets.'^ 

§63.  Actual  Notice.  That  which  a  person  actually'  sees;  or 
which  is  specifically  brought  to  his  attention,  creates  an  actual 
notice  of  the  fact.  But  the  general  doctrine  of  actual  notice  is 
much  broader  than  this.  Where  a  purchaser  has  knowledge  of  any 
fact  sufficient  to  put  a  prudent  man  upon  an  inquiry,  which,  if 
prosecuted  with  ordinary  diligence,  would  lead  to  actual  notice 
of  some  right  or  title  in  conflict  with  that  he  is  about  to  purchase, 
it  is  his  duty  to  make  the  inquiry,  and  if  he  does  not  make  it,  he 
is  guilty  of  bad  faith  or  negligence  to  such  an  extent  that  the  law 
will  presume  that  he  did  make  it,  and  will  charge  him  with  the 
actual  notice  he  would  have  received  if  he  had  made  it.'* 

Open,  notorious  and  exclusive  possession  of  land  imparts  notice 
of  the  title  of  the  person  in  possession,'*  and  of  every  fact  which 
the  purchaser  might  learn  by  inquiry,'*  but  this  rule  does  not 
apply  to  a  vendor  remaining  in  possession,  so  as  to  require  a  pur- 

^  Carbine  v.  Pringle,  90  111.  302."  34  Greer  v.   Higgins,   20   Kan.   420 ; 

30  Chamberlain  v.  Bell,  7  Cal.  292.  Mechan  v.  Williams,  48  Penn.  St.  241 ; 

31  Chamberlain  v.  Bell,  7  Cal.  292 ;  Cabeen  v.  Breckenridge,  48  HI.  91 ; 
Sanger  v.  Craigul,  10  Vt.  555;  Frost  Tuttle  v.  Churchman,  74  Ind.  .311; 
V.    Beekman,    1    Johns.    Ch.    (N.    Y.)  Hawley  v.  Morse,  32  Mo.  287. 

288.  35  Tankard   v.    Tankard,    79   N.    C. 

32Bourland  v.  Peoria,  16  111.  588.  .54;  Pritchard  v.  Brown,  4  N.  H.  397; 

33  Cambridge  Bank  v.  Delano,  48  N.  Morrison  v.  Morrison,  140  111.  560,  30 

Y.  326.  N.  E.  768. 


§  64]  SOURCES  OF   INFORMATION.  67 

chaser  from  his  grantee  to  inquire  whether  he  has  reserved  any 
interest  in  the  land  conveyed.  So  far  as  the  purchaser  is  con- 
cerned, the  vendor's  deed  is  conclusive  on  that  subject.^^  This  is 
the  rule  announced  in  a  majority  of  the  cases,  but  in  some  States 
it  has  been  held,  that  where  a  grantor  remains  in  possession  a  sub- 
sequent purchaser  is  charged  with  notice  of  his  claims  and  the 
duty  of  inquiry.^'' 

While  it  is  true,  that  the  law  regards  the  actual  occupancy  of 
land  as  equivalent  to  notice  of  the  claim  of  the  occupant,  to  all 
persons  dealing  with  the  title,  yet  this  is  not  an  absolute  proposi- 
tion, which  is  to  be  taken  as  true  in  all  possible  relations.  The 
known  circumstances  may  be  such  that  the  occupancy  will  not 
suggest  to  a  purchaser  an  inquiry  into  the  title  or  claim  of  the 
occupant,  and  when  the  inquiry  may  be  omitted  in  good  faith  and 
in  the  exercise  of  ordinary  prudence,  no  one  is  bound  to  make  it. 
Possession  out  of  the  vendor  and  actually  in  another  person  ordi- 
narily suggests  an  inquiry  into  the  claim  of  the  latter,  and  a  fail- 
ure to  make  such  inquiry  evinces  gross  neglect,  but  the  question 
in  such  cases  is  one  of  actual  notice,  and  such  notice  will  be  im- 
puted only  where  it  is  a  reasonable  and  just  inference  from  the 
visible  facts.^*  So,  too,  a  purchaser  of  land  is  charged  with  notice 
of  obvious  and  permanent  improvements  which  create  either  servi- 
tudes or  easements  and  takes  subject  to  the  burden  or  entitled  to 
the  benefits.^^ 

As  distinguished  from  constructive  notice,  actual  notice  con- 
sists in  express  information  of  a  fact  brought  home  to  a  party,  or 
a  knowledge  of  circumstances  which  should  lead  him  to  a  knowl- 
edge of  such  fact.  Its  existence  is  always  a  question  of  fact,  open 
to  rebuttal  or  explanation,  while,  on  the  other  hand,  constructive 
notice  is  a  presumption  of  law  which  cannot  be  rebutted.*" 

§  64.  Registration.  The  system  of  registration  practiced  in  the 
United  States  is  unknown  to  the  common  law  and  is  essentially  a 
creation  of  the  statute.     It  is  doubtless  derived  from  the  English 

Sevan  Keuren  v.  R.  R.  Co.,  38  N.  SSEollo  v.  Nelson,  34  Utah,  116,  96 

J.   L.   16.5;    Tuttle   v.   Churchman,   74  Pac.  263,  26  L.  R.  A.    (N.  S.)    31.5; 

Ind.  311;   Sprague  v.  White,  73  Iowa  Hall  v.  Morton,  125  Mo.  App.  315,  102 

670,  35  N.  W.  751.  S.  W.  570;   Clark  v.  Gaffncy,  116  111. 

37  White    V.    White,    89    111.    460;  362,  6  N.   E.  689. 

Groff   V.   Bank,   50   Minn.   234,  52   N.  40  Tufts  v.  King,   18   Pa.   St.   157; 

■V7.  651.  Bradbury    v.    Falmouth,    18    Me.    65; 

38Pomeroy  v.  Stevens,  11  Met.  244;  Birdsall  v.  Russell,  29  N.  Y.  220. 
Dooly  V.  Walcott,  4  Allen  406;  Jack- 
son V.  Elston,  12  Johns.  425. 


68  ARSTIIACTS    (1F    TITLE.  [§  64 

slalutc  of  cin'olliiioiits,  wliidi  was  cnactccl  lo  couiitcraet  llic  evil 
cflpecls  rosiilfinj:  fi-oiii  I  lie  piadicc  of  secret  eonveyaiices  under  the 
statute  of  uses.  Tliis  statute  jji-ovided  that  every  bai'^aiu  and  sale 
of  an  iiduM-itaiice  or  frccliold  sliould  l)e  by  i]ov{\  iiuleuted  aiul  en- 
rolled williin  six  luiiai'  nioiillis  from  its  date,  eitlici"  in  one  of  llu^ 
courts  (if  Westminster,  or  before  the  justices  and  clerk  of  the  peace 
in  the.  county  where  the  lands  were  situate.  The  enrolling  of  a 
deed  did  not  make  it  a  record,  however.  l)ut  it  was  recorded  "to 
be  kept  in  memory."*^ 

Ry  the  American  system  of  registration,  deeds  of  eonve.yance  of 
any  estate  or  interest  in  land,  when  duly  recorded  in  conformity 
with  the  law  of  the  State  where  such  land  is  situate,  have  the 
dignity  and  effect  of  records,  and  to  them  much  of  the  stability  of 
our  land  titles  is  attributable.  Such  record  not  only  serves  as  a 
means  of  preservation  of  the  muniments  and  evidences  of  title, 
but  also  has  the  effect  of  giving  to  the  transfer  that  notoriety  for- 
merly obtained  by  livery  of  seizin,  to  which  it  is  made  equivalent 
in  some  of  the  States  by  statute.*^  The  statutes  of  registration 
bear  a  close  similitude  in  all  the  States,  and  provide  generally  for 
the  recording  of  every  instrument  in  writing,  by  which  any  estate 
01-  interest  in  land  is  created,  aliened,  mortgaged  or  assigned,  or 
by  which  the  title  to  land  may  be  affected  either  in  law  or  eciuity. 

§  65.  Effect  of  Recording"  Acts.  It  is  a  familiar  provision  of 
the  recording  acts,  that  every  conveyance  which  shall  not  be  re- 
corded as  provided  by  law,  shall  be  void  against  any  subsequent 
purchaser  in  good  faith,  and  for  a  valuable  consideration,  of  the 
same  land,  or  any  portion  thereof,  whose  deed  of  conveyance  shall 
be  first  duly  recorded ;  and  further,  that  every  instrument  re- 
corded in  the  manner  prescribed  by  statute,  shall,  from  the  time 
of  filing  same  for  record,  impart  notice  to  all  persons  of  the  con- 
lents  thei-eof.  It  would  seem,  liowever,  that  the  constructive  no- 
tice alT'oi-ded  by  the  rcM-ord  of  a  deed,  apj)lies  only  to  those  who  arc 
bound  to  s(>ai'ch  foi-  it  ;  as  subsecpient  j)urchasei"s,  aiid  all  others 
who  deal  with  or  on  the  cjrdit  of  the  title,  in  the  liiu'  of  which  the 
r(>c*u"iled  deed  belongs.*^  That  such  record  inijiarls  notice,  is  to  be 
understood   also,  in   the  sense  that  tlie   contents  of  the  deed   arc 

41  Jacob 's   Law  Diet.   457.     It  will  of  convoyancc  in   England  and  whieli 

1)C   perceived   that    only   one   class   of  required  no  enroljnient  or  other  form 

deeds  was  required  to  be  enrolled,  to-  of  jiuhlicity. 

wit:   bargain  and  sale  of  an   inherit-  42TIigt)ce  v.  Rice,  5  Mass.   344. 

ance.      This    developed    the    form    of  43  Maul   v.   Rider,   59   Pa.   St.   ]67; 

i-onveyance  by  lease  and  release,  which  Corbin   v.  Sullivan,  47  Ind.  .".5fi;   Gil 

for  many  years  was  the  popular  mode  Ictt  v.  Gaflfney,  3  Col.  351. 


§65: 


SOURCES   OP   INFORMATION. 


69 


correctly  spread  upon  the  record,**  for  the  recording  acts  cannot 
be  made  hy  equitable  construction  to  embrace  cases  not  within 
tliem,  or  to  give  constructive  notice  of  things  the  records  do  not 
show;*5  and  where  a  mistake  is  made  in  recording,  a  subsequent 
purchaser  has  a  right,  in  the  absence  of  actual  notice  of  the  mis- 
take, to  rely  on  the  records  as  showing  the  exact  facts.*^  But  in- 
correct registration  cannot  avail  a  party  who  is  not  misled  there- 
by.« 

It  would  further  seem,  that  instruments  to  impart  notice,  must 
be  recorded  in  the  proper  books.  Thus,  where  separate  books  are 
provided  for  deeds  and  mortgages  it  has,  in  some  instances,  been 
held  that  a  mortgage  recorded  in  a  book  of  deeds  will  not  furnish 
constructive  notice.**  So,  also,  the  registry  of  an  instrument  not 
required  by  law  to  be  recorded  is  notice  to  no  one,*®  and,  in  the 
absence  of  statutory  provisions  to  the  contrary,  a  deed  is  not  con- 
structive notice,  because  copied  into  the  registry,  if  it  has  not  been 
duly  executed,  acknowledged  or  proved,  so  as  to  entitle  it  to  regis- 
tration ,5"  though  such  an  instrument  is  effective  as  to  all  parties 
who  have  actual  notice  of  its  contents.^^ 


44  Terrell  v.  Andrew  County,  44 
Mo.  309;  McLouth  v.  Hurt,  51  Tex. 
115. 

45  Friend  v.  Ward,  126  Wis.  291, 
104  N.  W.  997,  1  L.  E.  A.  (N.  S.) 
891. 

46  Frost  V.  Beekman,  1  Jahn,  Ch. 
288;  Barnard  v.  Campan,  29  Mich. 
162;  Wait  v.  Smith,  92  111.  385;  com- 
pare Riggs  V.  Boylan,  4  Biss.  445.  As 
was  said  by  the  court  in  Terrell  v. 
Andrew  County,  44  Mo.  309:  "A 
person  in  the  examination  of  titles, 
first  searches  the  records,  and  if  he 
finds  nothing  there  he  looks  to  see 
if  any  instruments  are  filed  and  not 
recorded.  If  nothing  is  found,  and 
he  has  no  actual  notice,  so  far  as  he 
is  concerned  the  laud  is  unincumbered. 
If  he  finds  a  conveyance,  he  goes  no 
further;  he  never  institutes  an  in- 
quiry to  find  whether  the  deed  is 
correctly  recorded  or  the  contents  lit- 
erally transcribed.  Indeed  to  attempt 
to  jtrosecute  such  a  search  would  be 
idle  and  nugatory.  Grantees  do  not 
iistially  leave  their  deeds  lying  in  the 
Recorder's  office  for  the  inspection  of 


the  public.  After  they  are  recorded 
they  take  them  away  and  keep  them 
in  their  own  possession.  In  a  large 
majority  of  cases,  it  would  not  only 
entail  expense  and  trouble,  but  it 
would  be  useless  to  attempt  to  get 
access  to  the  original  papers. ' ' 

This  is  a  vexed  question;  the  text 
states  the  preponderating  view  but  in 
several  States  a  contrary  doctrine  is 
held.  See  Mangold  v.  Barlow,  61 
Miss.  59.3;  Mines  v.  Mines,  35  Ala.  2.".; 
Throckmorton  v.  Price,  28  Tex.  6lt5; 
Clader  v.  Thomas,  89  Pa.  St.  34:;. 

47C.askill  V.  Badge  3  Lea  (Tenn.) 
144. 

48Cady  v.  Purser,  131  Cai.  .ir.2. 

49Galpin  v.  Abbott,  6  Mich.  17; 
Sigourney  v.  Larned,  10  Pick.   72. 

60  Loughridge  v.  Bowland,  52  Miss. 
546;  Pringle  v.  Dunn,  37  Wis.  440; 
Blood  V.  Blood,  23  Pick.  80;  Bishoii 
V.  Schneider,  46  Mo.  472;  Parrett  v. 
Shabhut,  5  Minn.  323;  Washburn  v. 
Burnham,  63  N.  Y.  132;  Jones  v.  Rob- 
erts, 65  Me.  273. 

61  Bass  V.  Estill,  50  Miss.  300;  Mn- 
sick  V.  Barney,  49  Mo.  458;  Musgrove 


70  ABSTBACTS   OF   TITLE.  [§  65 

Registration  in  legal  intendment  is  conclusive  notice  to  the 
parties  to  be  affected  by  it.  But  notice  of  a  prior  unrecorded  deed, 
coinniunicatod  to  a  purchaser,  will  prevail  over  a  subsequent  re- 
(•(M-dtHJ  deed, ^2  and  as  between  the  immediate  parties  no  registra- 
tion is  necessary,  an  unrecorded  deed  having  the  effect  to  carry  the 
le<ral  title  as  against  all  persons  having  actual  notice  of  its  exist- 
enro.^^ 

It  will  often  happen  that  in  sparsely  populated  localities  a  large 
area  will  be  devoted  to  the  purposes  of  a  single  county.  As  the 
country  develops  and  population  increases  this  area  is  divided  into 
possibly  several  counties.  In  such  event,  unless  there  has  been  a 
provision  for  the  transfer  of  records,  it  may  become  necessary  to 
extend  searches  into  more  than  one  county,  or  into  counties  other 
Ihaii  that  in  which  the  land  in  question  is  situate.  This  results 
from  the  rule,  now  very  generally  observed,  that  a  change  of  coun- 
ty boundaries  does  not  impose  the  duty  of  re-recording  deeds 
where  lands  are  thrown  into  a  new  or  different  county  from  the 
one  of  which  they  originally  formed  a  part,  and  where  an  instru- 
ment has  once  been  properly  lodged  for  record  in  the  county  where 
the  land  is  then  situate,  it  will  continue  to  impart  constructive 
notice  to  all  persons  subsequently  dealing  with  the  land  notwith- 
standing such  land  has  been  attached  to  another  county  and  no 
record  of  the  conveyance  has  been  made  in  such  latter  county.** 

§  66.  Loss  or  Destruction  of  Records.  The  obligation  of  giving 
the  notice  required  by  law  rests  upon  the  party  holding  the  title, 
and  if  his  duty  is  imperfectly  performed,  he,  and  not  an  innocent 
purchaser,  must  suffer  the  consequences ; "  yet  in  a  majority  of 
the  States  that  duty  is  effectively  performed  by  filing  the  deed  or 
instmment  for  record,  and  when  this  has  been  accomplished,  the 
party  has  done  all  that  the  law  requires.**  Where  a  party  has  in 
all  respects  complied  with  the  law  the  total  or  partial  destruction 
of  the  record  will  not,  it  seems,  impair  any  rights  which  may  have 
accrued  thereunder  nor  affect  the  constructive  notice  afforded  by 
the  filing  or  recording  of  the  instruments,  which  still  remain  of 

V.  Bonser,  5  Oreg.   313.     Where  upon  53  Musgrove  v.  Bonser,  5  Oreg.  313. 

the  records  a  defective  deed  is  found  64  Geer  v.  Mining  Co.,  134  Mo.  85 ; 

and  is  seen,  this  must  be  regarded  as  Koerper  v.  Ey.  Co.,  40  Minn.  132. 

actual  notice,  such  as  every  reasonable  66  Terrell  v.  Andrew  County,  44  Mo. 

and  honest  man  would  feel  bound  to  309. 

act  upon.     Hastings  v.   Cutler,  25  X.  66    Riggs   v.   Boylan,   4   Biss.   445; 

H.   (4  Fost.)  483.  Hook  v.  Fenner,  18  Colo.  283;   Beobe 

62  Claiborne  v.  Holmes,  51  Miss.  146.  v.  Morrell,  76  Mich.  114. 


§  68]  SOURCES   OF   INFORMATION.  71 

binding  force  and  effect  upon  subsequent  purchasers.^''  In  the 
event  of  the  destruction  of  the  record,  as  well  as  of  the  original 
instrument,  an  abstract,  shown  to  have  been  made  in  the  ordinary- 
course  of  business,  and  delivered  to  the  parties  interested  in  the 
land,  is,  as  to  such  lost  instrument,  competent  evidence  of  the 
facts  therein  recited,  either  by  comity,  or,  in  some  States,  by  ex- 
press enactment ;  ^^  but  where  such  abstract  is  unintelligible  with- 
out the  aid  of  some  proof  to  explain  the  meaning  of  abbreviations 
and  initial  letters  used  therein,  unless  some  stipulation  has  been 
made  which  determines  what  effect  shall  be  given  to  them,  it  would 
seem  that  the  abstract  is  insufficient  to  establish  title.^® 

For  this  reason,  among  many  others  that  could  be  adduced,  an 
abstract  should  always  be  so  written  that  its  contents  may  be  read 
and  understood  by  anyone.  Abbreviations,  as  far  as  possible, 
should  be  avoided. 

§  67.  Official  Aids  to  Search.  No  perfect  abstract  can  be  com- 
piled without  the  assistance  of  a  carefully  prepared  tract  index, 
the  details  of  which  will  be  fully  considered  in  another  place ;  and 
should  the  county  records  be  supplemented  with  this  indispensable 
adjunct,  the  searcher  will  have  less  difficulty  and  experience  more 
satisfactory  results.  Presuming,  however,  that  no  books  of  this 
character  are  provided  by  the  public  authorities,  recourse  must  be 
had  to  such  doubtful  aids  as  by  law  the  various  officers  are  re- 
quired to  keep.  These  consist  ordinarily  of  a  series  of  alphabeti- 
cally arranged  indexes  with  brief  descriptions  of  the  property. 
Well  kept,  the}'  will  be  of  much  assistance ;  if  otherwise,  they  will 
prove  very  misleading.  In  all  sales  of  real  estate,  where  no  better 
methods  are  available,  these  indexes  should  be  carefully  consulted 
and  a  rough  chain  obtained,  which,  by  reference  to  the  records, 
can  be  amplified  into  an  abstract. 

§  68.  Grantor  and  Grajitee  Indexes.  The  grantor  and  grantee 
indexes  of  the  Kegistry  of  Deeds,  will  show  the  successive  con- 
veyances and  incumbrances  under  the  names  of  the  various  par- 

67  Meyers  v.  Buchanan,  46  Miss.  But  in  Evans  v,  Foss,  194  Mass.  513, 
397;  Gammon  v.  Hodges,  73  lU.  140;  80  N.  E.  587,  9  L.  R.  A.  (N.  S.)  1039, 
Steele  v.  Boone,  75  111.  457;  Deming  it  was  held  that  abstracts  of  title  in 
V.  Miles,  35  Neb.  739;  Ashburn  v.  abbreviated  language,  which  are  put 
Spivey,  112  Ga.  474,  37  S.  E.  703;  in  evidence  by  agreement,  may  be  in- 
Thomas  v.  Hanson,  59  Minn.  274,  61  terpreted  according  to  their  manifest 
N.  W.  135.  meaning,  altliough  such  meaning  is  not 

68  Russell  v.  Mandell,  73  111.  136.  expressed  by  a  full  statement  in  words. 

69  Weeks    v.    Dowing,    30    Mich.    4. 


72  ABSTR.VCTS  OF   TITLE.  [§  68 

ties  who  at  different  times  have  held  the  title,  where  there  has  been 
no  break  in  the  chain,  together  with  the  volume  and  page  of  the 
record  on  which  the  instruments  may  be  found.  Adverse  deeds, 
unless  within  the  knowledge  of  the  examiner,  can  rarely  be  found 
by  this  method,  or  if  found  are  usually  the  result  of  accident 
rather  than  design.  If  only  an  index  to  grantors  is  provided  it 
will  bo  almost  impossible  to  detect  adverse  deeds.  Should  a  brief 
description  of  the  property  be  carried  out,  as  is  usually  the  case, 
ending  with  the  section,  town  and  range,  in  proper  columns,  these 
columns  should  always  be  carefully  run  down  for  any  conveyances 
that  may  have  escaped  the  searcher's  attention,  while  going  over 
the  names. 

While  it  may  be  the  duty  of  the  recorder  to  keep  a  proper  index 
of  his  books  of  registration,  so  that  one  searching  the  records  may 
easily  find  what  is  contained  therein,  yet  a  deed  of  conveyance 
l)roperly  tiled  and  copied  on  the  records  is  recorded  within  the 
meaning  of  the  law,  and  imparts  notice  to  subsequent  purchasers, 
notwithstanding  the  failure  of  the  recording  officer  to  index  it. 
The  index  is  no  part  of  the  records.^® 

Jn  a  very  few  States,  perhaps,  these  latter  statements  may  not 
apply,  for  in  several  instances  it  has  been  held,  under  statutes 
which  reciuire  the  recorder  to  keep  indexes,  that  a  deed  cannot  be 
considered  as  legally  recorded  until  the  proper  entries  of  at  least 
its  essentials  have  been  made  in  the  general  index,^^  while  some 
decisions  go  so  far  as  to  declare  that  the  index  itself  is  an  essential 
part  of  the  record.^^ 

60  Bishop  V.  JSclmeider,  46  Mo.  472  j  by   the    clerk   should    be    regarded   as 

Cliathaiii    V.    Bradford,    50    Ga.    327;  essential    to    the    lieu    of    judgments; 

Board   of   Commissioners   v.   Babcoek,  yet  no   one,  we  suppose,  would  claim 

o  Oreg.  472;  Ins.  Co.  v.  Dake,  87  N.  that  the  effect  of  a  judgment  was  de- 

y.  257;  Curtis  v.  Lyman,  24  Vt.  338;  pendent  on  the  act  or  omission  of  the 

lilading  V.  Frick,  88  Pa.  St.  460.    The  clerk  in  making  the   index."     Green 

index  is  not,  as  a  rule,  made  essential  v.  Garrington,  16  Ohio  St.  548;    l)ut 

by  statute,  and  though  the  courts  in  see    Howe   v.    Thayer,   49    Iowa   154; 

some    instances    seem    to    have    indi-  Lombard  v.  Culbertsou,  59  Wis.  433. 
cated  that  it  is  a  material  part  of  the  61  Hiles    v.    Atlee,    80     Wis.     219; 

records    the    reasons    therefor    do    not  Hewitt  v.  Week,  59  Wis.  444;  and  see, 

seem   to    be  sound   or   iu   consonance  Howe  v.  Thayer,  49  Iowa  154. 
with  the  general  doctrine  on  this  sub-  62  Ritchie  v.  Griffiths,  1  Wash.  429, 

jeet.       "The      principle,"      observes  25  Pac.  341,  12  L,  K.  A,  384.     In  this 

While,    J.,    "that    would   justify    the  case  it  was  held,  that  under  the  stat- 

holding   the   index  to   be   essential   to  ute  the  record  of  a  deed  is  not  com- 

the   effective   character   of   the   record  plete,  so  as  to  constitute  constructive 

in  the  case  of  conveyance,  would  seem  notice,  until  it  has  been  entered  in  the 

to   require  that   the  index  to  be  kept  index  book. 


§  70]  SOURCES   OF   INFORMATION.  73 

Index  entries  are,  however,  frequently  held  sufficient  to  charge 
iiotiee,^^  and  this  too,  even  though  no  description  of  the  property 
is  entered,  but  simply  the  words,  "see  record"^*  or  "certain  lots 
of  land;"  ^*  nor  is  it  necessarily  and  essentially  a  prerequisite  to  a 
valid  registration  that  the  index  should  contain  a  description  of 
the  lands  conveyed,^^  and  if  it  discloses  enough  to  put  a  careful 
and  prudent  examiner  on  inquiry,  and  if,  on  such  inquiry  an  ad- 
verse title  would  have  been  ascertained,  the  party  will  be  held 
to  have  received  notice. 

§69.  Notice  Lis  Pendens.  As  a  further  precaution  careful 
search  must  always  be  made  for  notices  lis  pendens,  and  attach- 
ments. These  are  usually  kept  in  books  separate  from  the  records 
of  deeds  and  mortgages,  and  verj^  frequently  are  not  noted  on  the 
reception  or  alphabetical  indices,  particularly  in  smaller  counties 
where  less  method  is  observed  than  in  larger  and  more  active  places. 
When  filed  according  to  law  they  create  liens  upon  the  land  to 
which  they  relate,  and  afford  notice  to  all  subsequent  purchasers. 
Whoever  takes  a  title  to  property  in  litigation  will  be  bound  by 
the  judgment  or  decree  that  may  be  rendered  in  the  suit.^''  A  fail- 
ure to  show  a  lis  pendens  in  the  abstract  has  been  held  to  create  a 
liability  for  damages  on  the  part  of  the  abstracter.^^ 

§  70.  Plaintiff  and  Defendant  Indexes.  The  plaintiff  and  de-* 
fendant  indexes  of  the  courts,  when  such  are  kept,  should  be 
further  consulted  for  judgments  against  any  of  the  parties,  who 
at  any  time  during  the  period  that  judgments  are  a  lien  on  land, 
have  held  title  to  the  property  in  question.  The  matter  of  pend- 
ing suits,  in  which  the  title  to  land  is  involved,  may  also  be  ascer- 
tained from  the  defendant's  index.  Where  no  notices  lis  pendens 
are  required  to  be  filed  with  the  recorder  of  deeds,  as  is  the  case  in 
many  States,  this,  perhaps,  will  be  about  the  only  way  in  which 
the  examiner  can  ascertain  the  facts.  The  index  generally  shows 
the  present  status  of  the  ease  and  refers  to  other  records  or  files 
where  its  history  may  be  obtained. 

63  Pringle  v.  Dunn,  '.'>7  Wis.  449;  effect  as  rpeords  there  will  be  found 
Maxwell  v.  Hartnian,  50  Wis.  667.  statutes    which    have    shaped    the    dc- 

64  White  V.  Hampton,  13  Iowa  260.       cisions  of  the  courts. 

66  Bostwick  V.  Powers,  12  Iowa  456.  67  Crooker  v.  Crooker,  57  Me.  395 ; 

66  Barney   v.    Little,    15   Iowa  535.  Leiteh  v.  Wells,  48  N.  Y.  585;  Jack- 
Local  statutes  will*  go  far  in  the  solu-  son  v.  Warren,  32  III.  331. 
tion  of  this  vexed  question.     In  most  68  Goldberg   v.   Title   Co.,   24   S.   D. 
cases   where    index   entries  are    given  4!),  123  N.  W.  266. 


74  ABSTBACTS   OF   TITLE.  [§  70 

These  books  will  be  found  far  more  satisfactory  in  their  results 
than  the  indexes  of  the  recorder's  office,  though  not  always  avail- 
able to  detect  adverse  matters.  Should  these  useful  books  not 
form  a  part  of  the  machinery  of  the  clerk's  office,  recourse  must 

1)0  had  10  the  jn(lp:inent  docket. 

§  71.  Tax  Records.  A  further  search  must  also  be  made 
in  the  records  of  the  county  clerk's  or  auditor's  office  for  delinquent 
taxes,  tax  sales,  forfeitures  and  judgments,  the  indices  and  aids 
by  way  of  reference  in  this  department  being  usually  very  ample, 
and  affording  all  the  information  necessary. 

§72.  Official  Certificates.  It  is  frequently  the  custom  of  the 
examiner  to  append  to  an  abstract  of  this  character,  the  certificates 
of  the  officers  having  the  custody  of  the  records  examined,  yet  in  a 
majority  of  cases  such  certificates  do  not  materially  enhance  the 
value  of  the  examination  as  evidence,  and  unless  forming  a  part 
of  their  official  duty  create  no  responsibility  on  the  part  of  the 
certifying  officers. 

§  72a.  Municipal  Records.  Occasionally  recourse  must  be  had 
to  the  records  of  cities  and  other  municipalities.  These  references, 
however,  will  be  rare.  In  many  States  vital  statistics  are  required 
'to  be  kept  and  sometimes  these  records  will  be  of  much  assistance 
in  determining  questions  relative  to  birth  and  death.  The  actions 
of  municipal  boards  in  matters  of  vacation  of  streets  and  public 
grounds  are  often  important  and  usually  in  sales  of  municipal  land 
the  ordinance  by  which  the  sale  was  authorized  must  be  shown  in 
connection  with  the  deed  of  conveyance, 

§  73.  Church  and  Parish  Records.  It  is  not  customary  for 
examiners  of  title  to  extend  their  inquiries  beyond  the  public 
records  kept  pursuant  to  law,  nor  will  the  exigencies  of  many 
cases  demand  a  wider  scope.  The  admirable  system  of  registra- 
tion which  exists  in  every  State  is  amply  sufficient  for  almost  every 
purpose  connected  with  the  development  of  title  and  the  preserva- 
tion of  the  muniments  by  which  same  is  evidenced.  But  occasion- 
ally a  missing  link — ^birth,  death,  or  marriage — can  only  be  sup- 
plied by  evidence  aliunde  the  record,  and  to  effect  this,  recourse 
must  be  had  to  less  reliable  testimony. 

Church  or  parish  records  are  frequently  resorted  to  in  the  de- 
termination of  doubtful  questions  of  pedigree — proof  of  birth,  or 
death  of  ancestor,  as  well  as  to  settle  questions  of  legitimacy  in 


§  73]  SOURCES   OF   INFORMATION.  75 

matters  of  succession.  Nor  is  there  any  good  reason  why  a  parish 
register  should  not  be  received  and  credited.  It  has  been  held 
that  they  serve  a  purpose  equivalent  to  that  served  by  family 
records,  and  are  fairly  to  be  dealt  with  as  equivalent  to  corpora- 
tion records,  which  are  generally  taken  as  evidence  of  such  mat- 
ters as  are  recorded  in  the  usual  course  of  affairs.®^  While  there 
is  not  much  authority  on  the  subject  in  this  country,  yet  all  the 
analogies  and  reasons  which  apply  to  other  presumptively  correct 
documents  apply  to  these.'® 

69  Hunt  V.  Chosen  Friends,  64  Mich.  in  Philadelphia  were  held  admissible 
671.  in    a   land   controversy    in    Kentucky, 

70  The  question  was  decided  in  favor  tried  in  one  of  the  United  States 
of  such  entries  in  an  early  case  in  the  Courts.  It  was  there  expressly  held 
Supreme  Court  of  the  United  States,  that  they  were  competent  testimony, 
where  the  entries  of  burial  in  a  church  Lewis  v.  Marshall,  .5  Pet.   (US.)  470. 


CHAPTER  VI. 


INDICES    AND  REFERENCES. 


§74. 

Importance  of  indexes. 

§81. 

§75. 

Patent  systems. 

§82. 

§76. 

The  Government  tract  book. 

§83. 

§77. 

Field  notes  of  Government  sur- 

§ 84. 

veys. 

§85. 

§78. 

The  original  entry  books. 

§86. 

§79. 

Document   number  index. 

§87. 

§80. 

Long  form  entries. 

§88. 

The  tract  index. 

The   irregular   index. 

The  tax  inde.x. 

The  judgment  index. 

Decrees  and  sales  in  chancery 

Grantees  index. 

Laying  out  the  books. 

Resume. 

§  74.  Importance  of  Indexes.     In  many  portions  of  the  United 

States  no  indexes  are  kept  by  the  examiner  of  titles,  who  relies,  in 
the  preparation  of  his  abstract,  solely  upon  such  meager  facilities 
and  aids  are  are  usually  afforded  by  the  public  offices,  the  details 
of  whiuh  were  considered  in  the  preceding  chapter.  A  perfect  and 
complete  abstract,  however,  can  be  compiled  only  with  the  assist- 
ance of  properly  prepared  indices  and  references.  By  the  aid 
which  they  afford  the  examiner  will  be  enabled  to  produce  a  per- 
fect chain  of  recorded  title,  however  intricate  or  complicated  it 
may  be,  while  without  them  diligence  and  learning  will  avail  but 
little,  and  the  abstract,  as  a  necessary  consequence,  will  be  incom- 
plete and  lacking  in  many  important  particulars. 

§  75.  Patent  Systems.  In  this  age  of  labor-saving  inventions 
it  is  not  strange  that  many  schemes  should  have  been  devised  to 
lighten  and  abridge  the  labors  of  the  examiner  in  the  preparation 
of  abstracts  of  title.  These  "systems"  are  usually'  protected  by 
copyright  or  letters  patent,  and  are  warranted  b^^  their  respective 
originators  and  proprietors  to  be  fully  adequate  for  every  purpose 
and  equal  to  all  the  exigencies  that  can  possibly  arise.  Not  infre- 
quently some  of  these  patent  systems  possess  elements  of  merit, 
and,  in  a  limited  way,  may  encompass  the  end  for  which  they  are 
designed.  Experience  has  not  demonstrated  their  usefulness,  how- 
ever, but  on  the  contrary,  in  most  cases,  has  shown  their  utter 
inutility.  As  a  rule  they  are  highly  chimerical,  and  in  practice 
generally  prove  a  fraud,  a  delusion  and  a  snare. 

There  is  no  royal  road  to  abstract  making,  and  the  examiner 

76 


§    70 J  INDICES    AND    REFERENCES.  77 

who  desires  to  produce  only  jnst  and  perfect  work  will  derive  but 
little  assistance  from  any  method  that  seeks  to  dispense  with  con- 
scientious labor  or  to  avoid  the  deep  and  thorough  investigation 
essentially  necessary  to  a  full  and  accurate  development  of  title. 
An  abstract  prepared  by  any  of  the  patent  methods  which  have 
been  brought  to  the  attention  of  the  writer,  if  at  all  complicated 
or  involving  intricacies  of  title,  must  needs  be  imperfect,  and 
hence  unreliable,  and  counsel  should  reject  such  compilations,  or 
at  most  pass  only  a  qualified  opinion.  The  methods  detailed  in 
this  volume  are  neither  patent  nor  copyright  systems.  They  are 
the  results  of  years  of  practical  experience,  and  are  those  now 
employed  by  the  abstract  makers  of  Chicago,  where  this  science 
has  been  more  fully  developed,  perhaps,  than  in  any  other  place  in 
the  world.  They  are  freely  given  to  the  profession  and  may  be 
used  by  any  person.^ 

We  may  now  direct  our  attention  to  the  necessary  equipment  of 
a  well  appointed  abstract  office  and  the  books  that  will  be  required 
for  the  proper  and  expeditious  transaction  of  the  business  of  ab- 
stract making. 

§  76.  The  Government  Tract  Book.  Among  the  permanent 
archives  of  a  local  government  land  office  are  a  series  of  township 
plats  and  tract  books,  upon  which  it  is  the  duty  of  the  register  to 
note  a  proper  entry  of  the  fact  of  the  sale  of  any  land  in  the  dis- 
trict. These  tract  books  are  arranged  in  the  regular  order  of 
townships  in  a  range,  and  of  sections  in  the  township,  or  fractional 
township,  and  afford  all  the  necessary  particulars  of  the  method 
of  the  disposal  of  the  land  in  the  district;  description  of  land  sold; 
name  of  purchaser ;  price  paid ;  number  of  certificate,  etc.  Where 
the  land  office  is  still  in  operation  these  particulars  can  be  ob- 
tained from  the  register,  and  in  districts  where  same  has  been  dis- 
continued, the  archives  are  usually  deposited,  in  pursuance  of  an 
act  of  Congress,  in  the  office  of  the  Secretary  of  State,  or  some 
other  designated  officer  of  the  State,  in  which  the  land  office  was 
situate.  A  copy,  or  compilation,  of  the  Government  Land  Office 
records  forms  the  foundation  of  the  examiner's  indices,  and  will 
be  found  an  invaluable  adjunct,  if  not  an  indispensable  requisite, 
to  all  effective  examinations  showing  the  entire  course  of  title. 
This  index  should  briefly  indicate  the  governmental  description 

1  Tliis    book    is    fully    protected    by  methods  iierein  described  are  given  to 

copyright,  and  no  person  may  appro-  the    jirofesaion    and    may   be   used    by 

priate  any  part  thereof  without   i)cr-  any  person, 
mission  of  the  author.   But  the  various 


78  ABSTRACTS   OF   TITLE.  [§  76 

of  the  laud ;  the  name  of  the  pureliaser ;  the  character  of  the  entry, 
as  sale,  homestead,  etc. ;  the  date  of  entry ;  number  of  certificate, 
and  note  of  caucellation  ^  and  re-entry,  if  any;  and  liually  the 
issuance  of  patent,  with  date  and  name  of  patentee.  Recourse  for 
the  latter  information  must  be  made  to  the  General  Land  Office 
at  Washington,  if  necessary,  as  the  possession  of  the  information 
is  essential  and  will  save  much  time,  annoyance  and  many  per- 
plexing questions  to  client  and  counsel,  owing  to  the  usual  loose 
methods  of  early  proprietors  and  the  imperfection  of  county 
records. 

§  77.  Field  Notes  of  Govemment  Surveys.  The  field  notes  oi 
the  government  surveyors  afford  the  elements  from  which  the 
plats  and  calculations  in  relation  to  the  public  surveys  are  made, 
and  are  the  source  wherefrom  the  description  and  evidence  of  lo- 
cations and  boundaries  are  officially  delineated  and  set  forth. 
They  contain  a  minute  record  of  all  the  official  acts  of  the  surveyor 
in  relation  to  the  measurement  of  the  public  lands,  establishing  of 
boundaries,  etc.,  and  present,  as  far  as  possible,  a  full  and  com- 
plete topographical  description  of  the  country  surveyed.  A  copy 
of  these  notes,  as  well  as  of  the  official  township  plats  made  in 
connection  therewith,  should  be  found  in  every  abstract  office,  for 
the  field  notes  of  the  original  survey  enter  into  and  form  part  of 
the  description  of  land  in  all  the  certificates  of  entry  and  patents 
from  the  government,  and  are  of  controlling  importance  in  de- 
termining the  true  location  of  public  lands.^ 

The  original  monuments,  as  long  as  they  can  be  ascertained, 
afford  the  most  satisfactory  if  not  conclusive  evidence  of  the  lines 
originally  run,  which  are  the  true  boundaries  of  the  tract  surveyed, 
whether  they  conform  to  the  plat  and  field  notes  or  not,  on  the 
principle  that  monuments  always  control  courses,  distances,  quan- 
tity, etc.  These  monuments  are  regarded  as  facts,  while  the  field 
notes  and  plats  indicating  courses,  distances  and  quantities,  are 
but  descriptions  which  serve  to  assist  in  ascertaining  the  facts,*  yet 
when  such  monuments  become  lost  or  obliterated  by  time,  accident 
or  design,  the  notes  and  plats  are  all  that  remain  to  fix  the  original 
location  of  the  monuments  and  determine  true  boundaries.^     No 

2  The  Commissioner  of  the  General  3  Hunt  v.  Rowley,  87  111.  491. 

Land  Office  has  po^Ye^,  for  cause,  to  4  MeClintock  v.  Rogers,  11  111.  279; 

cancel  entries  of  public  lands.     See,  Watrous    v.    Morrison,    33    Fla.    261; 

Parsons  v.  Venzke,  4  N.  Dak.  452,  for  Kincaid  v.  Dormey,  47  Mo.  337. 

a  very  full  and  lucid  discussion.     And  6  Sawyer  v.  Cox.  63  111.  130;  Bauer 

see,  Jones  v.  Meyers,  2  Idaho  793.  v.  Gattmanhausen,  65  111.  499. 


§  78]  INDICES   AND   REFERENCES.  79 

description   can   be  more  definite,   certain  and  satisfactory  than 
according  to  government  snrve}'.^ 

§  78.  The  Original  Entry.  The  books  used  in  the  business  of 
abstract  making  resemble,  in  man^y  particulars,  those  in  common 
use  in  mercantile  transactions,  the  day  book  and  ledger  of  the  mer- 
chant bearing  a  strong  analogy  to  the  original  entry  and  index 
of  the  examiner.  The  series  of  books  designated  as  "original  en- 
tries," comprise  an  epitome  of  the  transactions  of  the  day  in  the 
various  record  offices  of  the  county,  so  far  as  the  same  may  in  any 
way  affect  or  implicate  the  title  to  land,  set  forth  with  whatever 
degree  of  fullness  the  exigencies  of  the  occasion  will  admit,  or  the 
inclination  of  the  examiner  may  dictate.  There  is  no  special 
method  of  arranging  these  books,  the  convenience  of  the  compiler 
usually  determining  this  point,  the  only  essential  being  that  the 
transactions  of  the  day  are  shown  under  proper  chronological 
heads.  Where  the  volume  of  business  daily  passing  through  the 
recorder's  office  is  very  large,  only  a  brief  note,  showing  the  na- 
ture of  the  instrument,  parties,  date,  and  a  condensed  description 
of  the  propert}^  can  be  shown  on  the  original  entry,  the  date  at  the 
top  of  the  page  showing  the  date  of  filing  for  record,  thus : 

Nov.  29,  1882. 


Doc.  No.        Grantor. 


Orantee.        Inst.      Date 


Description. 


In  Chicago,  where  from  two  to  three  hundred  instnmients  fre- 
quently pass  through  the  recorder's  office  in  a  single  day,  the 
above  method  is  pursued,  the  examiner  making  his  entries  from 
the  original  instruments,  the  only  practical  system  under  circum- 
stances similar  to  the  foregoing.  This  information  may  also  be 
obtained  from  the  reception  indexes  of  the  recorder's  office,  should 
such  books  be  kept,  and  while  this  might  be  sufficient  in  many  of 
the  cases,  yet  oversights  or  omissions  are  liable  to  occur,  particu- 
larly where  the  deeds  are  noted  in  alphabetical  and  not  numerical 
order.  The  danger  is  apparent  when  it  is  remembered  that,  where 
a  deed  properly  acknowledged  and  certified,  is  left  for  record  with 
the  recorder,  it  takes  effect  from  that  date,  although  not  entered 
on  the  receiving  book  until  afterward.''^ 

6  Krusp  V.  S^ipps,  1 1  Til.  98.  and  see,  Haworth  v.  Taylor,  108  111. 

7  Poplin  V.  Mundoll,  27  Kan.   138;       275. 


80 


ABSTRACTS  OF  TlTl^E. 


[§78 


It   will  s clinics  luippcii  that  errors  arc  iiuule  by  the  rccoriling 

olliccr  ill  lraMscril)iii^.  Where  the  examiner's  entry  is  made  fi-om 
the  ()ri;:inal  dociiniciit  tliese  errors  may  be  (letecled  and  corrected 
on  tlie  compilation  of  abstracts.  Tn  jiraclicc  this  is  a  circnmstaneo 
of  not   infreqnent  occurrence. 

Where  the  orijjinal  instrnment  forms  the  basis  of  the  entry  a 
fnrthei-  index  is  necessary  to  furnish  the  book  and  page  of  the 
rec(tr(l  for  ready  reference  in  making  tlie  abstract,  which  is  easily 
accomplished  where  the  now  very  common  system  of  document 
numbers  is  employed.  After  the  instrument  has  been  formally 
tiled  for  record  the  actual  transcribinjr  does  not  occur  for  several 
days  or  perhaps  weeks,  yet  as  the  instrument  takes  effect  and 
operates  as  constnictive  notice  from  the  time  it  is  filed,  from 
obvious  reasons  the  examiner  must  obtain  his  notes  of  same  at  that 
time  and  not  wait  for  the  uncertain  contingency  of  actual  tran- 
scription. The  document  number  is  placed  on  the  instrument  at 
the  time  of  tiling,  and  forms  a  i)ortion  of  the  original  entry;  it  is 
po.sted  as  well  on  the  tract  index,  and  in  making  up  the  chain,  as 
lieroafter  explained,  furnishes  a  key  by  which  the  particular  in- 
sti'ument  is  always  identified. 

§  79.  Document  Number  Index.  As  the  numbers  run  in  con- 
secutive order,  a  book  called  the  Document  Number  Index  is  pro- 
vided, in  which  all  the  numbers  of  the  series  are  first  written  or 
printed.  At  the  close  of  business  hours  of  each  day,  all  the  in- 
struments which  have  been  transcribed  during  the  day  are  col- 
lected, and  opposite  the  number  of  the  deed  in  the  Document  Num- 
ber Index,  are  written  the  book  and  page  on  which  it  has  that  day 
been  recorded,  thus  furnishing  a  ready  and  easy  reference  to  the 
books  of  the  Register's  office,  thus: 

1—100. 


Doc.  No. 

Book. 

Page. 

Doc.  No. 

Book. 

Page. 

100 

614 

.520 

§  80.  Long  Form  Entries.  Whenever  practicable,  the  original 
entry  may  consist  of  a  full  abstract  of  every  instrument.  In  the 
cities  this  is  frequently  impossible,  but  in  sparsely  settled  coun- 
ties, or  in  places  where  only  a  small  number  of  conveyances  are 
filed  daily,  it  can  be  easily  accomplished,  and  the  examiner  will 


§81]  INDICES    AND   REFERENCES.  81 

then  have,  in  his  own  possession,  a  complete  duplicate  of  the 
material  parts  of  all  the  records  of  the  county,  an  acquisition  that 
circumstances  may  make  of  inestimable  value.  By  this  method 
the  greater  portion  of  the  abstract  can  be  compiled  without  con- 
sulting the  records,  thus  effecting  a  great  saving  of  time,  labor 
and  expense,  and  in  many  other  ways  it  will  be  found  equally 
advantageous.  It  is  unnecessary  to  dilate  on  the  subject  of  care 
and  accuracy  in  the  compilation  of  these  entries,  or  the  necessity 
of  thorough  revision.  When  made  in  short  form  from  the  orig- 
inal documents,  errors  maj'  be  detected  on  abstracting  the  deed 
from  the  records,  but  if  the  long  form  system  be  used,  an  error 
perpetrated  in  the  entries  will  be  repeated  in  the  indexes,  and 
again  in  the  abstract,  furnishing  endless  confusion  and  a  remote 
possibility  of  a  law  suit  for  damages. 

While  this  method  possesses  obvious  advantages  it  is  not  with- 
out disadvantages.  An  abstract  is  presumed  to  represent  the 
actual  condition  of  the  record  and  to  have  been  compiled  there- 
from. The  record  may  be  erroneous,  but  in  such  case  so  also 
should  the  abslract.  The  examiner's  entry  may  be  a  correct 
sjTiopsis  of  the  instrument,  but  if  the  abstract  is  made  from  such 
entry  and  not  from  the  record  it  ma}'  not  be  a  true  recital  of  the 
instrument  as  it  appears  upon  the  record.  For  this  reason,  even 
when  a  long  form  of  entry  is  used,  the  abstract  should  be  com- 
piled from  the  records  rather  than  from  the  entries,  and  if 
divergencies  appear  they  should  be  properly  noted.  In  any  event, 
even  though  the  abstract  may  be  prepared  from  the  examiner's 
own  long  form  entries  it  should  nevertheless  be  compared  with 
the  record  before  it  leaves  his  hands. 

§  81.  The  TrarCt  Index.  The  Tract  Index  occupies  much  the 
same  position  in  the  abstract  office,  that  the  great  ledger  does  in 
the  counting  room.  It  is  the  receptacle  for  all  the  notes  of  the 
entrj^  books,  where  the  great  mass  of  each  day's  transactions  is 
separated,  classified  and  arranged,  and  exhibits  at  a  glance  on 
its  broad  pages  the  balance  sheet  of  all  the  land  titles  of  the 
county.  It  is  the  foundation  stone  upon  which  the  entire  super- 
structure of  the  business  rests,  and  the  source  from  whence  the 
examiner  draws  all  his  primary  information  in  preparing  the 
abstract.  This  index  is  arranged  with  sole  reference  to  the  land 
in  the  county,  by  sections  or  parts  of  sections  in  case  of  unsub- 
divided  lands,  and  by  lots,  blocks  or  subdivisions  in  respect  to 
such  as  have  been  rcsurveyed  and  platted.  For  convenience  it 
should  contain,  as  far  as  practicable,  nil  the  specific  allusions  to 

Warvellf  Abstracts' — 6 


82 


ABSTIL\CTS   OF   TITLE. 


[§81 


particular  tracts  found  upon  the  records,  whether  consisting  of 
deeds,  agrcenionts,  releases,  attachments,  sales,  lis  pendens,  or 
other  instruments,  in  any  way  affecting  title  to  such  tracts,  or 
mentioning  same,  or  any  part  thereof.  In  addition  all  other  in- 
struments, capable  of  definite  location,  though  containing  no 
description,  should,  as  in  case  of  specific  instruments,  be  posted 
under  the  particular  classification  to  which  they  properly  belong. 
For  ordinary'  use  six  or  eight  quire  demy  *  books  will  be  found  the 
most  serviceable,  the  number  of  volumes  being  regulated  by  the 
size  of  the  county,  population,  prospects,  etc.  The  books  should 
be  ruled  across  with  heavy  and  faint  blue  lines,  and  the  page 
divided  with  red  lines  in  the  following  proportions: 

Sec.  1&— 1— 23. 


2002 


■11(1.  Doe  &•  wf 


Rich  'd  Roe 


N  W  Vi  N  W  % 


M. 


1-16-78 


2-10-78 


1—25 


The  foregoing  sample  page  Avould  be  posted  from  the  original 
entries  as  follows :  the  left  hand  column  is  filled  b^^  the  document 
number,  the  second  column  by  the  grantor's  name,  the  third  by 
the  grantee's,  while  the  wide  space  next  following  is  devoted  to  a 
brief  description  of  the  property.  The  nature  of  the  instrument, 
indicated  by  the  initial  letter  or  some  abbreviation,  occupies  the 
next  space,  while  in  the  two  succeeding  columns  much  informa- 
tion may  be  condensed  into  little  space  by  writing  on  both  the 
hea\y  and  faint  lines.  Thus,  in  the  first  column  the  upper  line  is 
intended  to  represent  the  date  of  the  instrument ;  as,  first  month, 
sixteenth  day,  1878,  the  lower  line  in  like  manner  representing  the 
date  of  record.  So,  in  the  last  column,  the  upper  line  will  repre- 
sent the  book  and  page  of  the  entry,  which,  if  written  in  extenso 
will  be  the  only  reference  needed  on  making  the  chain,  the  entry 
supplying  all  the  desired  information  that  could  be  afforded  by 
the  record;  the  lower  line  of  this  column  represents  the  book  and 
page  of  the  record.  Should  the  examiner  so  desire,  another 
column  may  be  added,  in  which  are  noted  "remarks,"  notes  of 


8  The  demy  page  is  recommended 
mainly  on  account  of  its  width,  hut  cap 
size  is  more  convenient  for  handling. 
The  domy  sheet  is  16x21,  making  a 
page  ItixlOVi:;  the  cap  page  is  14x8 '/-j. 


For  the  original  entry  a  four  quire 
cap  is  recommended.  Should  a  double 
page  be  devoted  to  the  tract  index  cap 
will  also  be  found  to  be  the  more 
lonvenient  form. 


§  82]  INDICES  AND  REFERENCES.  83 

reference,  satisfactions,  re-records,  etc.,  all  of  which  will  be  found 
to  greatly  enhance  the  value  of  the  volume. 

In  posting  these  books,  economy  of  space  should  always  be 
kept  in  view,  otherwise  they  will  soon  become  numerous  and  cum- 
bersome, greatly  retarding  the  examiner's  labors.  The  faint  lines 
should  always  be  used  in  case  of  long  descriptions,  and  the  poster 
is  allowed  considerable  latitude  in  the  matter  of  abbreviation  and 
condensation.  So  long  as  the  identity  of  the  parcel  is  preserved 
the  description  used  in  this  book  is  of  little  moment;  for  it  will 
be  remembered  this  is  but  an  index  to  the  place  where  the  full  and 
original  description  may  be  found.  For  example:  A  description 
commences  at  the  northeast  corner  of  the  northeast  quarter  of  a 
stated  section,  town  and  range,  and  describes  in  a  lengthy  manner, 
by  metes  and  bounds,  an  irregular  shaped  tract  which  contains 
eleven  acres,  the  description  ending  at  the  place  of  beginning.  It 
will  save  time  and  space,  and  be  just  as  correct  as  an  index,  to 
post  the  parcel  as  "11  ac.  in  N.  E.  cor.  N.  E.  14." 

§  82.  Irregular  Index.  This  index  is  designed  as  a  receptacle 
for  all  matters,  except  judgments,  that  from  their  nature  do  not 
admit  of  specific  posting  in  the  tract  indices.  Of  this  nature  are 
general  powers  of  attorney,  unless  the  examiner  sees  fit  to  keep  a 
separate  book  for  same;  releases  and  satisfaction  pieces,  which 
describe  no  property  and  are  incapable  of  definite  location ;  general 
confirmations,  assignments,  affidavits,  etc.  The  index  consists  of 
two  books,  arranged  alphabetically,  by  grantors  and  grantees,  and 
is  used,  in  compiling  the  chain,  in  exactly  the  same  manner  as  the 
judgment  indices.  It  is  posted  in  the  same  manner  as  the  tract 
index,  except  that  in  place  of  the  description  of  the  property  is 
noted  a  brief  statement  of  the  subject-matter  of  the  instrument, 
the  other  details  being  the  same.  In  all  compilations  this  index 
should  be  carefully  searched  for  the  names  of  all  parties,  grantor 
and  grantee,  who  at  any  time  during  the  period  covered  by  the 
examination  have  held  title  to  the  land  in  question,  or  possessed 
any  equities  therein.  In  case  of  variance  in  the  orthography  of  a 
name  it  is  advisable  to  post  it  both  in  the  category  to  which  the 
spelling  of  the  name  would  properly  consign  it,  and  in  the  section 
where  the  examiner  has  reason  to  believe  it  rightfully  belongs. 
Thus  should  the  name  as  found  be  "Lauson"  and  the  examiner 
from  other  indicia  have  reason  to  believe  the  name  is  "Slauson," 
the  two  names,  to  insure  accuracy,  should  be  noted  on  the  index, 
the  latter  being  identified  by  any  system  of  marks  the  examiner 
may  adopt  to  show  that  it  is  a  substitute. 


84 


\liSTlJ AC'I'S    (»!•'    Trri,K. 


§s;i 


§83.  Tax  Index.  Willi  the  cxccplioii  of  sales  I'di-  laxes,  every- 
lliiiiu:  capaltlt'  nf  siicli  t rcaliiiciit  s1miii!(I  he  posicd  in  the  Irael  iti- 
tlex.  Tax  sales,  lioweNcr,  can  liest  he  liaiidled  in  a  sepaialc  volume, 
and  as  a  lar.Lic  porlioii  are  followed  h\'  redemption  mneli  i\viu\ 
matter  will  thus  he  l<f|)1  olV  those  hooks.  This  index  is  jxisted  aftei- 
evei'v  sale,  and  should  Ix'  ari'anyed  to  show:  the  description  of  the 
propeity  :  the  name  of  the  })ers()n  against  whom  the  tax  is  assessed; 
the  nature  of  the  tax  for  whieh  the  sale  was  made,  as  general,  spe- 
cial, state,  county,  municipal,  special  assessment,  and  the  like; 
the  amount  of  the  tax;  tlie  year  for  which  it  was  levied;  the  date 
of  sale ;  and  if  desired  the  name  of  the  purchaser.  On  the  right 
hand  margin  of  the  page  a  space  should  be  left  on  which  may  be 
entered  the  fact  of  redemption.  At  the  top  of  the  page  the  section 
or  subdivision  is  written,  as  in  the  tract  index.  In  compiling  the 
chain  of  title  this  book  is  consulted  in  the  same  manner  as  the 
tract  index,  and  a  list  of  all  the  sales,  forfeitures,  etc.,  taken  off, 
which  is  then  sent  to  the  office  of  the  custodian  of  the  tax  records 
and  verified  by  his  books.  All  the  redemptions  are  stricken  from 
the  chain,  and  existing  liens  shown  as  hereafter  directed.  A  note 
of  all  the  redemptions  is  then  made  in  the  index,  thus: 

Sec.  10—12—14. 


S  W  Vi  S  W  % 


lios.  Higgina 


Gen 


1880 


Apr. 

10 

1881 


10,  50 


S.  R.  Smith 


Red.  June  1,  81 


Should  circumstances  permit  the  examiner  to  j)rocure  a  daily 
list  of  redemptions,  this  index  would  be  much  more  serviceable, 
and  considerable  labor  would  be  saved  in  preparing  the  abstract. 
Sueh  a  course,  however,  is  rarely  practicable,  and  the  method 
above  indicated  is  that  usually  followed. 

It  has  now  become  a  common  practice  for  examiners  of  title  to 
show  special  assessments  and  impositions  of  like  character.  When 
this  is  done  the  better  way  is  to  keep  a  special  index  to  all  con- 
firmed special  assessments  and  where  inheritance  taxes  are  levied 
on  the  estates  of  decedents  a  further  index  covering  these  matters 
should  also  be  provided.  Confirmed  special  a.ssessments  may  be 
noted  on  the  general  tract  index  and  inheritance  taxes  might  be 
posted  in  the  irregular  index,  but  the  better  plan,  and  that  which 
is  conducive  to  the  best  results  in  abstract  making,  is  to  keep  spe- 
cial indices  in  both  cases. 


^  8(j| 


INDICES   AND   REFERENCES. 


85 


§  84.  Judgment  Index.  The  Judgment  Index  consists  simply 
of  an  alpliabetically  arranged  index  of  names,  taken  from  the 
court  files  every  day,  and  shows:  the  name  of  the  judgment  debtor; 
the  plaintiff  or  judgment  creditor;  the  court  in  which  the  judg- 
ment is  docketed;  the  general  number  of  the  ease;  the  time  of 
rendition  or  docketing;  the  amount  of  the  judgment  and  costs, 
and  the  fact  of  satisfaction  in  the  same  manner  as  tax  liens.  In 
practice  this  book  is  used  the  same  as  the  tax  index.  The  follow- 
ing will  be  found  a  suitable  form  for  the  page : 


201 


Smith,  John  R. 


Union  Towing  Co. 


Circuit 


Mar. 

10 
1881 


150  00 


15  00 


Sat.  Mar.  15, 1882 


If  desired,  a  further  column  may  be  added,  showing  the  nature 
of  the  suit.  This  book  is  used  only  for  money  judgments,  or  such 
as  create  a  lien  on  land.  Decrees  in  chancery,  or  actions  and  pro- 
ceedings directly  involving  the  title  to  land,  are  posted  in  the  gen- 
eral tract  indices. 

§  85.  Decrees  and  Sales  in  Chancery.  No  separate  index  need 
be  kept  for  proceedings  in  court  of  an  equitable  nature.  For 
pending  suits  a  note  of  the  lis  pendens  or  attachment  as  found  in 
the  registry  of  deeds  is  sufficient.  For  decrees,  orders  or  sales 
made  in  pursuance  thereof  an  original  entry  should  be  kept  as  in 
case  of  deeds,  etc.,  showing  as  fully  as  may  be  the  entire  transac- 
tion, and  posted  as  other  instruments  are  in  the  general  tract  in- 
dex. These  proceedings  have  all  the  stability  of  conveyances  be- 
tween individuals,  and  form  permanent  muniments  of  title.  Exe- 
cution sales  may  be  noted  in  like  manner. 

For  greater  convenience  many  examiners  keep  special  indices  of 
decedents'  estates,  as  well  as  of  the  estates  of  minors  and  other 
persons  under  disability.  Where  this  can  be  done  the  practice  is 
recommended.  In  large  and  populous  counties  some  such  a  course 
becomes  almost  a  necessity. 


§  86.  Grantees  Index.  In  addition  to  the  books  described  in 
the  foregoing  paragraphs,  all  of  which  are  indispensable  in  a 
properly  equipped  abstract  office,  there  are  a  number  of  supple- 
mental volumes  that  may  be  used  to  advantage.  Chief  among  these 
supplemental  books  may  be  mentioned  an  index  to  grantees  ar- 
ranged alphabetically,  and,  for  the  purpose  of  more  ready  refer- 


86  ABSTRACTS   OP   TITLE.  [§  8fi 

euee,  by  vowel  sounds.  Jn  this  book  are  written  the  names  of  all 
grantees,  and  aftfr  same  the  book  and  page  of  the  record  where 
the  name  appears  and  a  reference  to  the  book  and  page  of  the 
original  entry  of  the  examiner.  The  name  is  written  but  once,  all 
subsequent  transfers  being  posted  opposite  same  by  simple  refer- 
ence to  book  and  page.  A  form  for  this  book  will  readily  suggest 
itself. 

The  primary-  object  of  this  index  is  to  furnish  a  read}'  means  of 
ascertaining  the  present  or  past  interests  of  any  individual  who 
at  any  time  has  held  the  legal  title  to  lands  in  the  county,  and  to 
facilitate  search  for  real  estate  standing  in  the  name  of  judgment 
debtors. 

§  87.  Laying-  Out  the  Books.  Considerable  judgment  must  be 
exercised  in  laying  out  a  set  of  abstract  books,  not  so  much  for 
economy  in  material,  though  this  may  be  an  object,  but  for  econ- 
omy of  time  in  their  use,  which  is  a  very  important  consideration. 
The  aim  of  the  examiner  should  be  to  have  his  indices  preserve 
such  a  correspondence  in  all  their  parts  that  posting  shall  cease  in 
every  division  of  the  work  at  about  the  same  time.  To  attain  this 
end,  where  a  section  or  subdivision  is  thickly  populated  and  sales 
are  frequent,  considerable  space  should  be  devoted  to  it,  and,  if 
necessary  for  greater  convenience,  the  land  may  be  indexed  by 
half  or  quarter  sections  instead  of  sections.  In  less  active  locali- 
ties, the  index  may  be  by  sections  and  less  space  should  be  used. 
In  a  new  county  this  question  must  be  determined  by  geographical 
considerations,  present  location  of  towns,  railroads,  water  ways, 
etc.  In  older  places  the  experience  of  the  past  will  usually  furnish 
a  safe  guide  in  this  respect  for  the  future. 

Alphabetical  indexes  are  laid  out  on  technical  and  arbitrary 
principles  based  upon  experience  in  the  distribution  of  initial  let- 
ters in  names.  Thus  it  is  found  that  certain  letters  occur  much 
more  frequently  than  others  in  the  commencement  of  names,  and 
space  must  be  given  accordingly.  The  table  on  the  opposite  page 
will  be  found  a  safe  guide : 

Thus  it  will  be  seen,  in  a  book  containing  thirty  pages  one  page 
will  be  sufficient  for  names  beginning  with  the  Letter  "A." 
Names  beginning  with  the  letter  "B"  are  much  more  frequent, 
and  hence  two  pages  should  be  devoted  to  these  names.  And  so 
the  number  of  pages  for  each  letter  will  be  proportionately  in- 
creased with  the  increasing  size  of  the  book,  so  that  if  it  contains 
480  pages,  forty  of  them  may  properly  be  set  aside  for  the  letter 


§88] 


INDICES   AND   REFERENCES. 


87 


SCALE  FOB 

.   INDEXING  BOOKS. 

> 

O    03 

o 
w 

O 

O 

o 

O 

00 

O 

o 

l-t 

O 

O 

O 

30 

iH 

O 
O 

§ 
N 

O 
<* 

O 
CO 

o 
ao 

O 
O 

n 

O 
w 

o 

n 

o 
w 

o 

00 

eo 

o 
o 

0 

0 

0 

0 

00 

<* 

A 

1 

1 

1 

2 

3 

3 

3 

4 

5 

6}   6 

6;    6 

7 

8 

81   9110!10 

lljll 

12112112 

B 

2 

3 

4 

6 

7 

10 

12 

13 

15 

17(18 

20|21 

23 

25|26|28i30|32 

34135 

37  38140 

c 

2 

3 

4 

5 

6 

7 

8 

9 

10|11 

12|13 

14 

15il6il7|18|19 

20121  22123}24 

D         

2 

3 

4 

5 

^ 

fi 

8 

8 

9|10 

11|12 

13 

13|14!15]16|17 

18il8119i21|22 

E 

1 

2 

2 

3|  4 

4 

4 

5|   6 

6[   7 

7 

7|   8|  8j  8\  9 

10|10!11|11112 

F      

3 

3 

4 

5|  6 

7 

7 

8|  9 

lOjll 

11 

12|13il3]14|15 

16  17  ISII912O 

G 

3 

3 

4 

5|   6 

7 

8 

9|10 

11|11 

12 

13!14|15il6jl6 

17!18i20j21122 

H 

3 

4 

6 

7 

9|10 

12 

14 

14J16 

18|19 

21 

23i25j27|28|29 

30132133|34|36 

I 

1 

2 

2 

2|  3 

3 

3 

3|   3 

3|  3 

4 

4j  5|  5|   5|  6 

6|   6 

61   61   6 

J 

2 

3 

3 

3|  4 

4 

5 

5|   6 

6|   7 

7 

8|   8j  9|10|10 

10111 

11112112 

K 

2 

2 

3 

4|  4 

5 

6 

6|   7 

8j   9 

10 

11|11|12|13,14 

15115 

15115116 

L      

1 

3 

3 

4 

5|  5 

6 

8 

8|  9 

10111 

12 

13114|15|16!16 

17|18 

19119120 

M 

i. 

3 

4 

5 

7 

9|io|n 

13  15|16 

18118 

20 

21I23125!26'27 

29|31 

32134|36 

Mc 

1 

-•- 

1 

2 

2 

2|   3|   3 

3|  4|  4 

4|   5 

5 

61   6i   61  6|    7 

71   7 

71   7|  7 

N 

1 

2 

3 

3|  3|  4 

4|  5|   5 

6\   7 

7 

7|  8|  8|  9|   9 

10110 

11|11112 

0 

1 

2 

3 

3|   3|   4 

4|  5|   6 

6|   7 

7 

7|  8|  S|  9|  9 

10|10 

11|12|12 

P 

1 

1 

2 

3 

3|  4|  5 

5|   6i   7 

7\   7 

8 

8|  9110|10,11 

11111 

12|13|14 

Q 

1 

1 

1 

1|   1|    1 

1|   1|  1 

1|   2 

2 

2    21   2'   2|   2 

2|   3 

3|   3|  3 

R 

2 

3 

4 

5 

61   7|  8 

10ill|12 

13|14 

15 

16117|18|19|20 

21122 

23124125 

S 

3 

5 

7 

8|10|13|14 

16il7]19 

22123 

25 

27129131133135 

36138 

40142144 

T 

2 

3 

4 

5 

6\   7|  8 

9110J11 

12|13 

14 

15|16117|18|19 

20121 

22123124 

U 

1 

1 

1 

1 

1|  1|   1 

Ij   2|  2 

2|   2 

2 

2|   2|   2|  2|  3 

3|  3 

31  41   4 

V 

1 

1 

1 

1 

1|  1|   1 

11   21  2 

2|   3 

3 

3|  ,3|   3|  3|  3 

3|  3 

3|  41  4 

W 

2 

2 

5 

6 

9|11|13|15 

17119i20 

22|24 

26 

28129|31|33|35 

37|39 

40;42|43 

X 

1 

1 

1 

1 

1|   1|   1 

11   11   1 

1|   1 

1 

1|   11   1|  1|  2 

21   3 

3|  31  3 

Y 

1| 

1 

1 

1 

2|   2|   2 

2|   2j   2 

2|  3 

3 

31   31  31   3|  3 

3|  4 

41  4|  4 

Z 

1 

1 

1 

1 

1|   1|   1|   1|   1|  1 

1|   1|  1 

21   21  21   2|  2 

2|  3 

3|   31   3 

§  88.  Resume.  The  foregoing  brief  sketch,  it  is  hoped,  will 
furnish  sufficient  hints  to  enable  one  with  no  previous  experience 
to  lay  out  and  keep  a  set  of  abstract  books  in  a  methodical  and 
intelligible  manner.  Neatness  is  a  prime  necessity  in  compiling 
the  books.  ChirogTaphy  should  be  plain  and  distinct.  Only  the 
very  best  writing  fluid  should  be  used.  Memoranda,  not  of  a  per- 
manent character,  should  be  made  with  a  hard  lead  pencil,  and  as 
little  as  possible  should  be  made.  When  the  memoranda  has  an- 
swered its  purpose  it  should  be  erased.  For  their  better  preserva- 
tion books  should  be  encased  in  canvas  covers  and  a  fire-proof 
receptacle  should  be  their  abiding  place  at  all  times  when  not  in 
actual  use.  Many  things  will  suggest  themselves  to  the  examiner, 
arising  from  local  causes,  while  his  own  ingenuity  will  enable  him 
to  improve  on  the  forms  here  given.  Having  then  started  the 
books,  the  next  thing  in  order  is  to  prepare  an  abstract  from  them, 
and  this  will  form  the  subject  of.  the  next  chapter. 


CHAPTER  VII. 


COM  PILING   THE   ABSTRACT. 


§ 

89. 

Generally   considered. 

S    98. 

§ 

90. 

Extent  of  the  searcli. 

§    99. 

§ 

91. 

Making  the  chain. 

§100. 

§ 

92. 

Formal  parts. 

§ 

93. 

The  caption. 

§ 

94. 

Arrangement  of   the   abstract. 

S  101. 

§ 

95. 

Synopsis  of  instruments. 

§102. 

§ 

96. 

Fullness  of  narration. 

§103. 

§ 

97. 

Instruments   shown   for   refer- 
ence. 

Examiner  's  notes. 
Irregular  instruments. 
Keference    to    original 

ments    and    private 

randa. 
Abbreviations. 
Letter  press  copies. 
Concluding  certificate. 


instru- 
memo- 


§89.  Generally  Considered.  Abslraets  of  lillo  in  the  InitcHl 
States,  ^vlli('ll  aio  usiuilly  ]»iTi);n'ed  l)y  professional  examiners,  do 
not,  as  a  rule,  disclose,  except  inferentially,  any  matter  or  thing 
affecting  title  save  what  appears  of  record,  and  searches  ai-e  main- 
ly restricted  to  the  public  records  of  the  county.  Ordinarily  this 
is  sufficient,  and  a  careful  search  will  reveal  all  that  is  necessary 
to  a  proper  estimate  of  the  title,  and  fully  protect  intending  pur- 
chasers. In  England,  where  the  abstract  is  prepared  from  orig- 
inal documents,  it  is  customary  to  give  a  far  wider  range  to  the 
examiner's  efforts  and  to  include  not  only  the  material  parts  of 
deeds,  wills,  etc.,  but  of  records  and  private  acts  of  Parliament, 
and  even  of  public  acts  passed  for  private  purposes,  which  might 
in  any  wise  implicate  or  affect  the  title;  and  to  these  are  added 
such  facts  as  fill  up  the  interval  of  title,  as  descents,  deaths,  mar- 
riages, births,  burials  and  other  circumstances  generally  called 
matters  in  pais}  and  when  it  is  necessary  to  prove  a  pedigree,  as 
where  a  descent  occurs  in  the  course  of  the  abstract,  in  the  absence 
of  better  evidence  the  examiner  has  recourse  to  wills  of  relatives, 
extracts  from  parish  books,  from  family  bibles,  and  even  from 
tombstones.2  Our  system  of  registration,  of  probate  proceedings, 
and  of  judicial  inquiry  and  determination,  and  the  legal  effect 
thereof,  renders  the  English  examiner's  methods  useless  to  a  large 
extent  in  the  United  States,  yet  it  cannot  be  denied  that  oppor- 
tunities frequently  occur  for  a  judicious  breach  of  the  conven- 


I  1  Prcst.  on  Abstracts,  43. 


2  Brown  's  Law  Diet.  5. 


§  90]  COMPILING   THE  ABSTRACT.  89 

tional  observance  of  record  evidence  only,  and  for  the  introduction 
of  what  may  properly  be  called  matters  in  pais.  A  number  of  in- 
stances of  this  kind  will  be  found  noted  on  the  succeeding  pages  of 
this  book. 

§  90.  Extent  of  the  Search.  An  examination,  upon  its  face, 
purports  to  show  the  course  of  title  from  a  definite  date  to  another 
definite  date,  and  the  fair  and  reasonable  import  of  the  undertak- 
ing is,  that  the  examiner  has  made  a  full  and  true  search  relative 
to  the  title  during  that  period  and  has  noted  on  the  abstract  every 
transfer,  or  other  matter,  affecting  the  same,  actually  made  and 
entered  of  record  between  those  dates.  It  has  been  held,  that  he 
is  under  no  duty  to  inquire  into  the  existence  of  any  judgments 
entered,  or  conveyances  recorded,  prior  to  the  date  mentioned  as 
the  commencement  of  the  search,  neither  is  he  required  to  ascer- 
tain or  certify  as  to  any  lien  arising  under  any  such  prior  judg- 
ment, although  the  same  may  have  first  atached  and  become  opera- 
tive after  that  time  by  reason  of  the  fact  that  the  judgment  debtor 
then  first  acquired  title  to  the  premises;  nor  is  he  bound  to  in- 
quire or  state  whether  the  title  vested  in  any  grantee,  during  the 
period  covered  by  the  examination,  was  affected  by  any  prior  con- 
veyance or  any  estoppel  growing  out  of  any  covenants  therein.^ 

It  must  be  obvious,  however,  that  an  examination  made  in  strict 
conformity  to  the  foregoing  will  in  many  instances  defeat  the  very 
object  of  the  search,  and  hence  it  is  customary  to  show  subsisting 
tax  and  judgment  liens,  even  though  accruing  prior  to  the  date  of 
the  commencement  of  the  examination,  and,  except  in  case  of  con- 
tinuations, an  abstract  deficient  in  this  respect  should  be  rejected 
by  counsel,  as  no  safe  opinion  can  be  predicated  upon  it.  In  all 
cases  where  a  lien  first  attaches  during  the  period  covered  by  the 
examination,  it  should  be  shown,  whatever  may  have  been  its  in- 
ception, and  any  departure  from  this  rule  is  to  rob  the  abstract  of 
its  character  of  a  trustworthy  guide  and  reduce,  if  not  vitiate,  its 
value  as  an  evidence  of  the  true  state  of  the  title. 

In  many  localities  it  is  or  has  been  customary  to  dispense  with  a 
formal  abstract,  and  in  its  stead  the  examiner  merely  "certifies 
the  title,"  as  being  "good,"  "bad"  or  "doubtful,"  in  an  in- 
dividual named,  basing  his  certificate  upon  his  personal  examina- 
tion of  the  records.     This  is  merely  an  opinion  of  title,  and  its 

3  Wakefield  v.  Chowen,  26  Minn.  523;  State  v.  Bradish,  14  Mass.  29G; 
379;  Dodd  v.  Williams,  3  Mo.  App.  Ford  v.  Unity  Church,  120  Mo.  498. 
278;  and  see,  Ely  v.  Wikox,  20  Wis. 


90  ABSTRACTS   OP   TITLE.  [§90 

worth  depends  wholly  upon  tlie  learning,  ability,  and  financial 
responsibility  of  the  individual  rendering  it. 

Again,  while  the  examiner  may  present  a  synopsis  of  the  deeds, 
etc.,  it  is  simply  for  the  purpose  of  showing,  like  the  English  ab- 
stract, the  present  title  of  some  specified  person,  the  chain  com- 
mencing at  some  given  point  as  the  root.  In  a  case  of  this  kind 
unusual  care  is  required,  lest  a  prior  conveyance  operating  by  way 
of  estoppel,  may  not  defeat  the  title  shown.  It  is  customary,  in  an 
examination  similar  to  the  one  under  consideration,  to  commence 
with  a  deed  showing  title  in  vendor  or  his  grantor,  and  thence  con- 
tinuing down  to  the  date  of  the  certificate.  There  is  not  wanting 
authority  to  support  an  examination  of  this  character,  and  it  has 
been  held  that  a  deed  recorded  before  the  grantor  has  any  record 
title  may  be  safely  disregarded  in  examination  of  title,  under  the 
system  of  registration  and  notice  adopted  in  the  different  States  of 
the  Union;  that  such  a  deed  would  not  be  constructive  notice  to 
any  innocent  purchaser;*  and  further,  that  a  purchaser  finding 
an  apparently  valid  title  of  record,  is  not  expected  to  look  behind 
it.^  The  rule,  however,  is  unsafe  and  does  not  prevail  generally,^ 
and  counsel  before  passing  on  an  examination  purporting  to  show 
no  more  than  above  stated,  should  have  satisfactory  assurance  that 
no  prior  deeds  exist  of  record,  or  his  opinion  should  indicate  the 
possible  defects  of  title  resulting  therefrom. 

If  the  examiner  is  directed  to  commence  his  search  at  a  given 
period,  or  with  a  specific  event  in  the  devolution  of  title,  he  will, 
of  course,  discharge  his  whole  duty  b,y  a  true  showing  of  what 
has  transpired  since  that  time  or  event,  but  a  purchaser  will  there- 
by assume  a  risk. 

§  91.  Making-  the  Chain.  Before  commencing  the  formal  ab- 
stract a  preliminary  sketch  should  first  be  made  from  all  the 
indices.  This  sketch,  called  the  "chain,"  is  simply  a  series  of 
brief  notes  of  all  conveyances,  incumbrances  and  liens  affecting 
the  property  under  consideration,  as  shown  by  the  tract  index, 
and,  where  the  original  entry  is  meager,  the  examiner  uses  these 
references  in  making  full  abstracts  of  the  instruments  from  the 
records.     It  also  shows  what  instruments  are  associated  with  the 

4Dod(i    V.    Williams,    3    Mo.    App.  5  State  v.  Biadish,  14  Mass.  296. 

278;   and  see.  Ford  v.  Unity  Church,  6  See    "Estoppel,"    "Notice"   and 

120  Mo.  498;   Calder  v.  Chapman,  52      "Registration." 
Pa.    St.    359;    State    v.    Bradish,    14 
Mass.    296;    Ely    v.    Wilcox,    20    Wis. 
523. 


§  93]  COMPILING   THE   ABSTRACT.  91 

names  of  those  whom  the  tract  index  invests  with  title,  that  appear 
upon  the  irregular  index;  the  names  of  all  persons  who  at  any 
time  have  held  title  which  are  found  upon  the  judgment  index; 
and  all  tax  sales  or  forfeitures  of  the  land  in  question  as  shown  by 
the  tax  index.  These  latter  are  then  verified  by  comparison  with 
the  records,  and  all  satisfactions  or  redemptions  stricken  from  the 
sketch.  The  instruments,  proceedings,  etc.,  are  then  numbered 
and  arranged  in  the  order  in  which  the  abstract  should  be  written, 
and  furnish  a  reference  guide  for  this  portion  of  the  work. 

§92.  Formal  Parts.  The  abstract  should  be  prepared  in  a 
neat  and  orderly  manner,  and  so  disposed  as  to  facilitate  the  labor 
of  counsel  in  passing  on  the  title.  A  formal  caption  should  ap- 
prise the  reader  at  the  outset  of  the  subject  of  the  examination, 
while  the  different  searches  should  be  arranged  under  classified 
heads,  and  for  purposes  of  convenient  reference  the  various  con- 
vej^ances  and  statements  should  be  numbered  consecutively  from 
the  beginning.  The  result  of  the  search  should  be  recapitulated 
at  the  conclusion  by  a  certificate  covering  all  the  essential  features 
of  the  examination.  The  formal  parts  should  be  brief,  yet  explicit, 
and  drawn  with  great  care,  particularly  the  examiner's  certificate, 
for  it  is  this  which  imparts  to  the  abstract  its  value  as  evidence. 

It  is  recommended,  that  the  abstract  be  written  with  a  pen  and 
not  with  a  type-writer.  This  is  a  safeguard  against  mutilation, 
forgery,  or  changes  of  any  kind  after  it  has  left  the  examiner's 
hands.  Specifically  water-marked  paper  is  another  safeguard 
which  should  be  employed  whenever  possible. 

§93.  The  Caption.  The  object  of  the  caption  is  to  definitely 
describe  the  subject  of  the  examination.  It  would  seem  to  be  the 
practice  of  Eastern  abstract  makers,  following  the  English  prec- 
edents, to  insert  here  the  name  of  the  person  for  whom  the  search 
is  made,  and  frequently,  to  describe  the  abstract  itself  as  the  ex- 
emplification of  the  title  of  some  particular  individual.''^  But  this 
is  usurping  the  province  of  the  examining  counsel,  who  alone 
should  say  where  and  in  whom  the  title  rests,  and  that  only  after  a 
careful  and  diligent  inquiry  into  all  the  questions  raised  by  the 
abstract,  both  directly  and  inferentially.  The  work  of  the  exam- 
iner is  to  present  to  counsel  all  that  appears  of  record  concerning 
a  specified  tract  of  land ;  no  more.  The  counsel  must  say  in  whom, 
under  the  application  of  legal  rules  and  principles,  the  title  rests, 

7  See     Curwen     on     Abstracts,     .S8 ; 
Willard  on  Conveyancing,  551. 


92  ABSTRACTS    OF    TITLE.  |  !^  0^ 

or  is  vest 0(1.  The  (•ai)1i()ii,  lliord'oro,  sliould  consist  of  a  I'nll  dc- 
s('rii)lion  of  tli(>  parci^I  oi'  i)ar('ols  of  laiul  uiidoi'  oxainiiial ion,  and 
llie  time  from  which  the  scai-cli  is  made.  Tlic  following  is  the 
form  of  an  onlinary  caption  : 

KXAMINATIOS  OF  TITLK^ 

to 

Lot  Five  (o)  uf  Block  Four  (4)  of  Bond's  iSubdirision  of  the  North 
East  quarter  of  Section  Twenty-Three  (23)  Town  Thirty-Seven 
(37)  North,  Range  Thirteen  (13)  East  of  the  Third  Principal 
Meridian;  except  the  Soutli  one  hundred  acres,  and  also  one 
acre,  in  the  North  West  corner  of  East  one  half  (i/^)  of  said 
quarter  section,  deeded  to  the  School  Commissioners. 

l)oscrij)ti()ns  of  platted  lands  are  fr('(|uently  confined  to  the  rec- 
ord title  of  the  i)lat,  which  fails  to  ])rovi(le  a  full  desij^nation,  and 
the  description  thus  employed  in  the  deeds  is  also  used  in  the  cap- 
tion of  the  abstract.  AVhen  such  is  the  case  it  is  a  good  plan  to  fur- 
ther indicate  the  location  of  the  pr()])er1v  with  reference  to  the 
original  division,  thus: 

Sub-Block  Three  (3)  of  Block  Four  (4)  of  Sheffield's  Addition  to 
Chicago,  Cook  County,  Ills. 

The  premises  in  question  are  located  upon  the  North  Jwlf  of  the 
North  East  quarter  of  Section  39,  Town  40  North,  Range  J4  East 
of  the  3d  Principal  Meridian. 

So  also,  it  maj'  happen  that  a  subdivision  is  laid  out  on  several 
]>arcels,  in  which  case  it  maybe  deemed  desirable  to  show  the  pai-- 
ticulai"  jiarcel  in  which  the  lots  under  examination  are  located. 
The  ca})tion  would  therefoi-e  vary  a  little  from  that  last  shown. 
As  for  example  : 

Lot  Four  (4)  in  Block  Two  (2)  in  Rockwdrs  Addiiion  fo  Chi- 
cago. Cook  County,  Ills. 

Stiid  addiiion  is  laid  out  on  (he  West  Half  of  the  North  West 
quarter  of  Section  18,  Town  39  North,  Range  Jl,  East  of  the  3d 
Principal  Meridian,  and  the  North  East  quarter  of  Section  13, 
Town  39  North.,  Range  13  East  of  the  3d  Principal  Meridian. 

8  If  desired  the  word  "abstract"  lish  method,  the  latter  more  fully 
may  l)e  employed  instead  of  "exam-  expresses  the  idea  involved  and  is  in 
illation.''      The    former    is    the    Eng-       common  use  in  this  country. 


§  93]  COMPILING    THE   ABSTRACT,  93 

The  Lot  in  question  falls  within  the  North  East  quarter  of  Sec- 
tion 13  aforesaid. 

When  the  early  stages  of  title,  prior  to  the  subdivision,  are 
shown,  the  foregoing  method  often  becomes  a  great  help  to  counsel 
in  examining  the  abstract. 

If  the  examination  is  of  two  or  more  parcels  the  caption  should 
clearl}^  indicate  this  fact  and  the  description  of  the  different  par- 
cels should  be  neatly  separated.  The  following  will  serve  as  a 
precedent : 

The  West  half  of  the  South  West  quarter  of  the  North  East 
quarter  of  Section  lu,  Town  39  North,  Range  13,  East  of  the 
Third  Principal  Meridian. 

Also; 

That  part  of  the  West  half  of  the  North  West  quarter  of  the  South 
East  quarter  of  said  Section  lying  North  of  the  Barry  Point  Road. 

Should  the  examination  be  a  continuation  of  a  foraier  search, 
the  words  ''Continuation  of"  may  be  placed  at  the  beginning  of 
the  caption,  preceding  the  word  "Examination."  But  while  this 
form  is  employed  by  some  examiners  its  use  is  not  recommended, 
as  the  fact  is  fully  shown  by  the  time  clause  as  hereafter  described. 
If  desired  the  word  "Abstract"  may  be  employed  instead  of 
"Examination."  This  is  the  English  style  and  many  examiners 
prefer  it. 

Where  the  examination  commences  at  the  source  of  title,  as 
where  a  devolution  from  the  United  States  is  shown,  no  announce- 
ment of  the  time  from  which  the  search  dates  is  necessary,  but 
when  any  intermediate  point  is  selected,  it  is  customary  to  indi- 
cate same.  This  is  accomplished  by  a  simple  statement  of  the  fact 
immediately  following  the  description,  and  neatly  separated  from 
what  precedes  and  follows  by  dashes,  thus: 


Conimencing  this  examination  Oct.  !),  1871. 


The  certificate,  when  properly  drawn,  will  always  show  the  re- 
spective dates  covered  by  the  examination,  but  many  examiners 
prefer  to  indicate  these  facts  in  advance,  and  when  such  is  the 
case,  the  time  clause  should  read  so  as  to  show  the  termination  as 


94  ABSTRACTS   OP   TITLE.  [§  93 

well  as  the  commeiieemont  of  the  searcli.  When  the  examination 
is  partial,  and  does  not  come  down  to  include  present  time,  this 
method  is  strongrly  recommended.  In  snch  a  ease  the  time  clause 
mig:ht  read  as  follows: 

Commencing  this  examination  Oct.  9,  1871,  and  hringivg  the 
same  down  to  include  Sept.  7,  1874. 

Where  the  examination  includes  several  distinct  parcels,  and 
the  search  does  not  cover  the  same  period  of  time  as  to  all  of  the 
parcels,  this  fact  should  be  indicated  at  the  start ;  thus : 

As  to  Lots  13  to  16  inclusive,  in  Block  5,  we  hring  our  exatndna- 
tion  down  to  include  March  3,  1886. 

As  to  the  remainder  of  said  premises  ive  bring  our  examdnation 
down  to  inchide  the  date  hereof. 

In  case  of  a  continuation  of  a  former  search  the  time  clause 
should  read  somewhat  as  follows: 

Last  exa/tndnation  made  hy  vs  dated  Mwrch  3,  1879. 

or  should  the  search  have  been  made   by  a  different  examiner, 

Last  examination  made  hy  Handy,  Simmons  &  Co.,  dated  June 
7,  1880. 

It  may  be  that  the  examination  is  designed  to  show  only  a  par- 
ticular title  antedating  the  actual  time  of  the  search.  In  such 
case  some  initial  statement  disclosing  the  fact  is  necessary  to  avoid 
confusion,  and  this  may  be  accomplished  by  some  such  statement 
as  the  following: 

We  bring  our  examination  down  iu  include  the  title  to  said 
premises  acquired  by  Delbert  A.  Clithero  by  the  deeds  to  him 
herein  shown. 

It  sometimes  happens  that  the  eliont  desires  a  search  only  from 
some  particular  time,  and  selects  some  particular  instrument  as 
the  basis  of  his  title.  In  this  case,  the  instrument  selected  should 
form  the  initial  number  of  the  abstract,  and  the  time  clause  should 
read  substantially  as  follows : 

^Ve  assume,  by  direction,  that  John  Smith  acquired  title  to  the 
fee  of  the  land  described  in  the  caption  hereto,  on  the  10th  dmf  of 


§  94]  COMPILING   THE   ABSTRACT,  95 

April,  1873,  hy  the  instrument  shown  as  number  one  of  this  ex- 
amination. 

Frequently  the  examiner  will  be  called  upon  for  partial,  or 
special  examinations,  either  of  land  or  concerning  individuals,  in 
which  case  the  caption  should  explicitly  state  all  the  points  cov- 
ered by  the  examination,  and,  if  necessary  for  greater  certainty, 
negative  such  as  are  not ;  as 

Special  Examination 

for 

Judgments  and  Pending  Suits  in  the  Circuit  and  Superior 
Courts  of  Cook  County,  Illinois,  against  George  P.  Williams  and 
John  R.  Smith.    Judgments  against  John  Smith  disregarded. 

Examinations  for  special  conveyances,  for  real  estate  standing 
in  the  name  of  judgment  debtors,  for  taxes,  etc.,  should  be  treated 
in  the  same  general  manner. 

Where  the  examination  is  confined  to  the  elucidation  of  a  single 
issue,  it  becomes  more  properly  an  abstract  of  the  particular  point 
under  consideration,  and  is  so  denominated;  as. 

Abstract 

of 

A  Tax  Title  to  in-lot  twenty-four,  of  the  original  plat  of  the 
village  of  Edgerton,  Green  county,  Wisconsin,  acquired  under  and 
hy  virtue  of  a  sale  made  May  10,  1879,  for  the  taxes  of  1878. 

§  94.  Arrangement  of  the  Abstract.  The  different  convey- 
ances and  stages  of  title  are  usually  shown  in  chronological  order 
so  as  to  present,  as  far  as  possible,  a  connected  chain,  and  are 
numbered  seriatim  from  the  beginning.  Many  examiners  show 
the  deeds  and  grants  collectively,  while  the  mortgages  and  liens 
are  grouped  together  in  the  same  manner  under  a  classified  head. 
This  arrangement,  though  widely  used,  is  inconvenient  and  fre- 
quently distracting  to  counsel.  The  liens  and  incumbrances  when 
connecting  title  should  be  set  forth  in  regular  chronological  order 
in  conjunction  with  other  instruments,  and  releases  or  discharges 
should  immediately  follow  the  incumbrance  or  lien  which  they 
purport  to  affect,  irrespective  of  the  time  they  bear  date.  The  aim 
of  the  examiner  should  be  to  present,  so  far  as  may  be,  the  course 


96 


ABSTRACTS   OF    TITLE. 


[§94 


of  title  in  unbroken  sequence  through  whatever  forms  or  instru- 
mentalities it  may  pass.  Jutlgments  against  the  person,  me- 
chanic's liens,  taxes  and  tax  sales,  may  be  shown  after  the  course 
of  title  has  been  traced,  in  the  shape  of  appendices  and  under 
appropriate  heads.  Decrees,  judgments,  orders  affecting  the  land, 
and  tax  deeds,  of  course  appear  in  regular  order  in  the  body  of 
the  abstract.  Official  deeds,  resulting  from  execution  or  judicial 
sales,  should  be  preceded  in  the  former  case  by  the  judgment,  in 
the  latter  b}'  the  s])ecial  j^roccedings  and  doo-oes  upon  which  they 
are  founded. 

As  a  further  aid  in  effecting  a  correct  and  systematic  arrange- 
ment of  the  instruments  shown  in  an  examination,  an  illustration 
in  the  form  of  a  chain  is  herewith  given.  This  title,  while  it  would 
present  but  few  difficulties,  is  yet  sufficiently  intricate  to  explain 
the  method. 


EXAMINATION  OF  TITLE 
to 

The  N.  E.  14  Sec.  10,  T.  1  N.,  R.  23  E. 


1. 

U.  S.  to  A. 9 

Patent 

All 

Aug. 

1,  183.0. 

0 

A.  to  B. 

Deed- 

All 

Dec. 

ir,,  1839. 

3. 

B.  to  C. 

Deed 

All 

June 

10,  1845. 

4. 

C.  to  D. 

D.  to  G. 

Deed 

All 

.  V2 

May 
June 

3,  1850. 

5. 

Deed 

Und 

1,  1850. 

6. 

G.  to  H. 
D.  to  E. 

Deed 

Und 

.  V2 
•  V2 

April 
July 

11,  1855. 

7. 

Deed 

U'iid 

2,  1852. 

8. 

E.  to  F. 

Deed 

Und 

.  V2 

Sept. 

12,  1853. 

9. 

F.  to  H. 
H.  to  M. 
State  to  I. 

Deed 

Und 

.  1/2 
All 
All 

April 

Oct. 

March 

11,  1859. 

10. 

Deed 

8,  1859. 

11. 

Tax  Deed 

1,  1850. 

12. 

I  to  J. 

Quit  Claim 

All 

Jan. 

2,  1851. 

13. 

J.  to  K. 

Deed 

All 

May 

15,  1851. 

14. 

K.  to  L. 

Deed 

All 

Feh. 

26,  1857. 

15. 

L.  to  M. 

Deed 

All 

Oct. 

8,  1859. 

'  9  The   above   illustration   is   for   ar-       of    every    instrument   and    j)rof'ee(ling 
rangement   only;    of   course,   in   com-      must  be  given, 
piling    the    abstract,    a    full    synopsis 


§  95]  COMPILING    THE   ABSTRACT.  97 

16.    M.  to  N.  Deed  All  Nov.         1,  1860. 


Judgments. 


Tax  Sales. 


Examiner's  Certificate  of  Search. 

The  foregoing  sketch,  though  brief,  conveys,  in  some  measure, 
an  idea  of  the  arrangement  of  a  chain  of  title.  From  Nos.  1  to  4 
the  divestiture  of  the  title  from  the  government  and  its  devolution 
through  mesne  conveyances  is  regular  and  v/ithout  interruption. 
At  No.  5  the  ownership  of  the  land  changes  from  severalty  to 
common,  an  undivided  one  half  being  vested  by  No.  6  in  H.  As 
H,  in  the  devolution  of  title,  subsequently  becomes  invested  with 
the  remaining  one  half,  a  stop  should  be  made  at  this  point  and 
the  title  to  such  remaining  one  half  traced  until  it  again  becomes 
merged  in  H.  This  is  accomplished  in  No.  9,  The  reunited  title 
should  then  be  distinguished  from  what  has  preceded  by  a  short 
dash,  and  the  next  conveyance.  No.  10,  should  form  another  initial 
point,  from  which,  if  no  other  obstacle  intervened,  the  chain  would 
be  continued.  But  during  the  devolution  of  the  original  title  a 
tax  title  has  been  created  by  a  grant  from  the  State.  This  title  is 
independent  and  adverse,  and  if  there  should  be  no  subsequent 
merger  would  be  properly  shown  after  the  original  title  had  been 
fully  traced.  In  the  illustration  this  title  is  afterward  acquired 
by  M,  therefore,  as  he  now  owns  the  original  title,  such  tax  title 
should  at  this  point  be  traced  to  him.  A  broad  dash  should  there- 
fore separate  the  chain  and  the  course  of  the  tax  title  should  be 
followed  until  M  receives  the  investure,  which  is  accomplished  in 
No.  15.  Here  the  broad  dash  is  again  employed  to  separate  the 
tax  title  from  the  original,  and  the  full  and  reunited  course  is 
continued  in  the  deed  from  M  to  N,  The  judgments  and  tax 
sales,  if  any,  follow  as  special  appendices. 

An  abstract  thus  arranged  greatly  lessens  the  labors  of  counsel 
in  preparing  an  analysis,^"*  and  by  reason  of  its  coherency  presents 
most,  if  not  all,  of  its  salient  features  on  first  perusal. 

§  95.  Synopsis  of  th.e  Instruments.  In  England,  abstracts  are 
prepared  after  a  uniform  system  which  has  long  been  observed  by 
the  conveyancers  of  that  country,  and  the  impress  of  which  is 

10  A  precedent   for   an   analysis   of 
title  is  given  in  §  600. 

Warvelle  Abstracts — 7 


98  ABSTRACTS   OF    TITLE.  [§  95 

plainly  discernible  in  many  portions  of  the  Eastern  part  of  the 
United  iStates.^^  It  is  very  methodical  and  precise,  and  in  view 
of  the  difVerenecs  in  the  sources  of  information,  as  well  as  the 
information  itself,  and  of  the  effect  which  many  of  the  matters 
there  required  to  be  shown  have  upon  title,  is  perhaps  highly  con- 
ducive to  the  end  desired,  yet  after  all  it  is  more  a  matter  of  prec- 
edent and  the  observance  of  established  forms  than  of  real  utility. 
Should  the  tiiste  of  the  examiner  so  incline,  or  counsel  so  direct, 
the  instruments  maj'  be  displayed  after  the  English  model,  which 
is,  briefly,  as  follows: 

The  abstract  is  usually  written  on  "brief"  paper,  which  is 
divided  by  three  real  or  imaginary  longitudinal  lines,  thus  leav- 
ing a  page  with  four  divisions  which  are  technically  known  as 
"margins."  The  outer,  or  left  hand  margin,  is  left  clear  for  the 
person  investigating  the  title  to  insert  any  note  or  intended  in- 
(luiry  which  may  suggest  itself  during  the  perusal  of  the  abstract, 
or  it  may  sometimes  be  used  by  the  abstract  maker  for  the  inser- 
tion of  a  note  or  statement  necessary  to  a  proper  display  of  the 
title.  The  caption  is  written  from  the  third  margin.  The  descrip- 
tion of  the  parties,  as  well  as  the  testatum,  is  usually  written  from 
the  outer  margin.  The  parcels,  that  is  the  descriptions  of  the 
property,  are  invariably  set  out  from  the  third  inner  margin.  The 
habendum  is  most  frequently  written  from  the  second  inner  mar- 
gin, while  the  recitals  are  almost  invariably  written  from  the  Urst 
inner  margiu.^^  '^his  method  undoubtedly  possesses  some  ad- 
vantages, the  chief  merits  being,  that  it  enables  counsel  at  a  glance 
to  refer  to  any  portion  of  an  instrument  without  having  his  at- 
tention diverted  to  other  parts,  and  the  facility  it  affords  for  the 
comparison  of  instruments  and  the  determination  of  their  opera- 
tion and  effect  when  construed  in  relation  to  each  other ;  but  aside 
from  this  it  is  difiEicult  to  perceive  any  particular  inducement  for 
the  adoption  of  the  marginal  system. 

The  form  of  synopsis  recommended  by  the  writer,  and  of  which 
the  succeeding  illustrations  afford  numerous  examples,  is  exceed- 
ingly simple  and  unartificial.  It  consists  merely  of  an  arrange- 
ment not  unlike  that  used  in  preparing  the  pleadings  in  a  law  suit; 
that  is,  a  caption  reciting  the  parties  to  the  transaction,  or  the 
nature  of  the  transaction  itself  in  practicable  cases,  followed  by  a 
plain  narration  of  whatever  matter  may  be  deemed  essential.     The 

11  See  precedent  of  New  England  sioiis  in  different  parts  of  this  work, 
abstract  in  appendix.  an    example,   illustrating   the   English 

12  Seaborne  on  Vendors,  4  et  seq.  methods  will  be  found  in  the  appen- 
As  this  matter  receives  frequent  allu-  dix. 


§  96]  COMPILING   THE   ABSTRACT.  99 

caption,  for  greater  ease  in  perusing  and  comparing,  is  placed  at 
tlie  left  hand  side  of  the  page  and  united  with  a  bracket,  or,  if 
desired,  may  be  written  over  and  across  the  narration  which  fol- 
lows. All  the  recitals  are  written  across  the  entire  page  and  not 
otherwise  distinguished  from  each  other  than  by  being  thrown 
into  paragraphs.  In  case  of  notes  a  slight  indentation  is  desirable 
to  more  fully  distinguish  them  from  other  matter,  but  with  this 
exception  all  writing  had  better  be  made  from  the  ruled  margin 
of  the  sheet,  ordinary  legal  cap  being  used  for  the  purpose.  This 
method  has  long  been  pursued  by  the  abstract  makers  of  the  West, 
where  it  is  conceded  the  most  perfect  and  finished  abstracts  are 
now  produced,  and  has  met  the  general  approbation  of  the  legal 
profession. 

§  96.  Fullness  of  Narration.  From  what  has  been  said,  it  will 
appear  that  a  full  and  complete  narration  of  the  material  parts  of 
every  instrument,  proceeding  or  act,  shown  in  the  abstract,  is 
necessary  to  a  complete  and  perfect  examination.  A  thing  of  no 
seeming  moment  to  the  examiner,  may,  to  the  trained  eye  of 
counsel,  be  a  circumstance  of  vital  importance.  While  the  abstract 
is  not  intended  to  be  a  copy  of  what  is  shown  it  should  yet  be  suflS- 
cient  to  impart  all  the  essential  information  that  might  be  obtained 
from  a  perusal  of  the  original  documents.  It  is  not  necessary, 
save  in  exceptional  cases,  that  it  should  be  a  literal  transcript  of 
every  point  or  matter  deemed  material  or  essential,  for,  on  the  con- 
trary, the  majority  of  these  matters  will  be  more  clearly  and  per- 
tinently presented  by  a  brief  and  succinct  statement  that  shall 
fully  cover  the  particular  point,  divested  of  its  redundancy  and 
unnecessary  verbiage.  The  object  of  the  abstract  is  to  economize 
time,  and  to  enable  the  reader  to  survey  the  entire  course  of  title, 
comj)aratively,  at  a  glance.  Hence,  long  and  technical  provisions 
should,  whenever  practicable,  be  digested  so  as  to  show  their  pith 
and  substance,  which,  in  many  instances,  may  be  done  without  in 
any  manner  impaii'ing  their  significance.  The  faculty  of  con- 
densation sliould  be  cultivated  by  all  who  would  aspire  to  excellence 
in  the  preparation  of  abstracts,  for  nothing  more  distinguishes 
the  accomplished  and  expert  examiner,  and  the  work  is  always 
duly  recognized  and  appreciated  by  counsel. 

These  remarks,  however,  apply  mainly  to  the  general  and  not 
to  the  special  incidents  of  instruments,  for  these  latter,  as  a  rule, 
can  best  be  presented  in  the  language  of  the  originals,  and  to  avoid 
error  or  omission  should  be  so  shown.  Thus,  a  general  recital  is 
far  better  presented  as  a  terse  and  succinct  statement,  but  pro- 


100  ABSTRACTS   OP   TITLE.  [§96 

visions  peculiar  to  the  instrument  must  be  fully  stated  or  literally 
copied,  for  it  must  ever  be  borne  in  mind,  that  where  one  is  charge- 
able with  the  notice  of  the  record  of  an  instrument,  he  is  equally 
affected  with  notice  of  all  material  matters  contained  in  such  in- 
strument.^^ 

Court  proceedings  are  now  more  fully  shown  than  formerly.  It 
is  not  sufficient  to  simply  abstract  docket  entries.  In  all  cases  the 
files  should  be  consulted  as  well  and  frequently  it  will  be  neces- 
sary to  make  voluminous  extracts  or  digests.  The  degree  of  detail 
will  depend  much  on  the  character  of  the  proceeding  but,  in  any 
event,  the  information  furnished  should  be  sufficiently  explicit  to 
enable  counsel  intelligently  to  pass  upon  the  legal  questions  in- 
volved. 

§97.  Instruments  Shown  for  Reference.  While  the  primary 
purpose  of  an  abstract  is  to  show  onl}^  the  course  of  title  to  a  spec- 
ified tract,  yet,  in  order  more  fully  to  illustrate  such  title,  or  to 
enable  counsel  to  obtain  better  views  with  respect  thereto,  it  is 
not  an  infrequent  practice  to  exhibit,  for  the  purpose  of  reference, 
instruments  which  connect  with  the  title  collaterally.  The  prac- 
tice is  fully  sanctioned  by  the  usage  of  the  best  examiners  and 
such  collateral  matters  are  often  of  high  importance  considered  in 
connection  with  the  title  shown.  Whenever  it  may  be  deemed  de- 
sirable or  expedient  to  show  such  instruments  they  should  imme- 
diately follow  the  deeds  they  affect  or  explain  and  should  be  pre- 
ceded by  the  following  note: 

The  following  deed  is  shown  for  reference  only. 

It  is  well,  also,  when  reference  deeds  are  shown,  to  append  a 
note  in  proper  cases  showing  that  the  subsequent  development  of 
the  title  thereby  conveyed  is  not  contemplated,  thus: 

Note. — Title  of  John  Smiih  and  his  grantees  not  followed  out. 

§98.  Examiner's  Notes.  The  examples  in  the  preceding  para- 
graph are  notes  of  explanation.  It  is  the  custom  of  many  ex- 
aminers to  freely  intersperse  through  the  examination  their  own 
comments  and  observations  relative  to  matters  therein  stated. 
When  properly  inserted  these  notes  are  of  much  advantage  in 
arriving  at  a  proper  estimate  of  the  instruments  shown,  and  in 

13  Kerfoot  v.  Cronin,  105  111.  609. 


§  100]  COMPILING   THE  ABSTRACT.  101 

determining  their  character  and  the  degree  of  importance  to  be 
attached  to  them.  From  his  peculiar  position,  knowledge  of  the 
records,  and  control  of  indices  and  references,  the  examiner  is  fre- 
quently in  possession  of  information,  which,  though  not  strictly 
essential  to  the  abstract,  and  in  a  certain  sense  aliunde,  is  yet  a 
valuable  contribution  and  may  obviate  many  perplexing  questions 
that  might  otherwise  arise  on  its  perusal  by  counsel.  This  infor- 
mation should  be  appended  in  the  shape  of  explanatory  notes. 
They  should  be  brief,  concise,  and  confined  strictly  to  a  statement 
of  facts.  Queries,  save  in  rare  instances,  opinions,  and  desultory 
suggestions,  only  serve  to  confuse  and  distract.  When  alluding 
to  any  particular  instrument  or  proceeding,  they  should,  when 
practicable,  immediately  follow  the  particular  conveyance  referred 
to,  or  should  this  be  undesirable,  may  be  placed  at  the  end  of  the 
abstract,  immediately  before  the  certificate,  by  way  of  appendix. 
It  is  not  a  good  plan  to  encumber  the  abstract  with  a  profusion 
of  notes,  yet  in  no  ease  where  the  matter  stated  is  important,  or 
necessary  to  a  better  understanding  of  what  has  preceded  or  may 
follow,  should  they  be  omitted,  and  when  doubtful  as  to  the  pro- 
priety of  their  insertion,  it  is  better  to  err  on  the  side  of  safety, 
even  at  the  cost  of  being  prolix. 

§99.  Irregnlar  Instruments.  In  compiling  the  abstract  the 
irregular  index  should  be  as  carefully  consulted  as  the  index  of 
lands,  and  not  only  should  this  index  show  every  independent  in- 
strument of  an  irregular  character,  but  also  references  to  other 
instruments  duly  posted  in  the  tract  index,  when  by  reason  of 
anything  therein  contained  or  appended  thereto,  light  may  be  shed 
upon  examinations  in  which  they  do  not  properly  appear.  Thus, 
an  affidavit  of  pedigree,  domestic  condition,  etc.,  may  be  appended 
to  a  deed  of  specific  lands  which  is  duly  posted  in  the  tract  index, 
but  as  this  affidavit  may  have  an  equally  important  bearing  upon 
the  title  to  other  lands,  it  must  also  be  posted  in  the  irregular  index 
for  easy  reference. 

§  100.  Reference  to  Original  Instruments  and  Private  Memo- 
randa. An  abstract  is  compiled,  in  the  usual  course,  from  the 
face  of  the  record,  and  purports  to  show  all  essential  facts  thereby 
disclosed.  If  incorrect  statements  appear  upon  the  record  they 
must  also  appear  upon  the  abstract.  The  examiner  should  not 
assume  to  correct  the  record.  But,  as  will  often  be  the  case,  if  the 
examiner  is  satisfied  that  a  misstatement  has  been  made,  or  that 
the  recording  officer  has  failed  to  properly  transcribe  the  contents 


102  ABSTRACTS   OF    TITLE.  [§  100 

of  a  (locunioiit  loft  witli  him  for  record,  it  is  the  duty  of  the  ex- 
aminer to  apprise  his  client  of  such  error,  and  that  too  upon  the 
face  of  tilt'  ahslract  he  has  compiled.  This  will,  in  some  instances, 
necessitate^  a  i'ef(>rence  to  the  oriprinal  instrument  and  when  the 
fact  of  an  error  lies  within  the  examiner's  knowledge  this  is  a 
proper  way  of  i)resenting  it. 

The  usual  and  better  way  to  show  a  matter  of  this  kind  is  by  a 
note  appended  to  the  abstract  of  the  erroneous  document  in  this 
manner : 

Note. — TJie  original  document,  now  in  our  hands,  which  is  re- 
corded as  above  in  Book  512  of  Records,  page  197,  shows 
the  signature  of  said  grantor  as  ^'Harriet  Jones"  and  not 
"Eariet  Janes." 

So,  too,  if  the  original  entry  books,  made  from  the  original  docu- 
ments as  they  were  filed,  shows  a  diflference  in  names  or  descrip- 
tion a  reference  thereto,  in  the  same  manner  as  the  foregoing,  is 
proper.^* 

§  101.  Abbreviations.  In  preparing  his  notes  and  arranging 
his  books,  the  examiner  will  find  his  labors  greatly  accelerated  by 
the  use  of  abbreviations.  These  may  include  not  only  the  com- 
monly accepted  initials  for  the  points  of  the  compass,  different 
classes  of  conveyances,  governmental  divisions  of  land,  etc.,  but  all 
such  abbreviated  forms  or  contractions  as  to  himself  may  have  a 
definite  meaning.  In  the  abstract,  however,  everything  should  be 
written  out  in  full,  for  it  cannot  be  known  into  whose  hands  it  may 
come,  and  arbitrary  forms  and  abbreviations  that  to  the  examiner 
appear  extremely  lucid  may  cause  much  annoj^ance  and  incon- 
venience both  to  counsel  and  non-professional  readers.  On  the 
other  hand,  the  examiner  should  never  attempt  to  supply  the  de- 
ficiencies of  the  conveyancer  by  writing  out  in  the  abstract  his 
abbreviations  in  the  deed,  but  whenever  such  occur  the  better  way 
is  to  make  a  literal  transcription  of  the  abbreviated  words  or  pas- 
sages, and  certify  same  with  quotation  marks  thus:  "Sec.  14,  T. 
39,  Range  13  E."  The  question  of  interpretation  will  then  rest 
where  it  rightfully  belongs — with  counsel  who  is  to  pass  on  the 
title.  A  deed  is  not  invalid  because  of  the  description  of  the  lands 
being  in  figures  or  well  understood  abbreviations,^^  but  abstracts 

14  For  a  precedent  of  a  note  of  this  15  Harringfton  v.  Fish,  10  Mich.  415; 

kind  see  §  201.  Moseley  v.  Mastin,  37  Ala.  216. 


§  103]  COMPILING  THE  ABSTRACT,  103 

which  are  unintelligible  without  the  aid  of  some  proof  to  explain 
the  meaning  of  abbreviations  and  initials  used  in  them,  when  per- 
mitted to  be  used  as  evidence,  are  insufficient  in  themselves  to 
establish  title.^® 

§  102.  Letter  Press  Copies.  No  abstract  or  examination 
should  be  permitted  to  leave  the  maker's  hands  until  a  duplicate 
letter  press  copy,  or  its  equivalent,  has  first  been  obtained.  The 
examiner  should  always  have  in  his  own  possession  the  verifica- 
tion of  his  work  as  a  matter  of  self-protection,  while  in  case  the 
volume  of  business  passing  through  the  offices  of  registration  is 
such  as  to  preclude  making  full  minutes  in  the  first  instance,  the 
copies  thus  obtained  will  supply  the  deficiency,  and  be  available 
for  future  examinations  of  the  same  property,  without  the  labor 
of  again  referring  to  the  records.  This  may  be  accomplished  by 
noting  on  the  tract  index  opposite  the  reference  of  the  instrument 
in  question  the  volume  and  page  of  the  copy  book  on  which  the 
full  abstract  is  preserved. 

§  103.  Concluding-  Certificate.  The  result  of  the  examiner 's 
labors  should  be  summed  up  in  conclusion,  by  a  brief  recapitula- 
tory and  explanatory  certificate,  embodying  the  essential  features 
of  the  search.  Its  extent  is  optional  with  the  examiner,  but  it 
should,  to  give  stability  to  the  abstract,  cover  his  searches  in  the 
offices  of  registration,  the  courts,  and  depositories  of  records  rela- 
tive to  taxation,  these  three  sources  of  information  furnishing 
nearly  all  the  evidence  required  in  passing  on  the  sufficiency  of  the 
title.  It  should  be  certain  in  its  statements,  leaving  nothing  to  im- 
plication, and  contain  no  more  than  is  developed  by  actual  investi- 
gation. If  the  examination  is  made  from  the  records  it  should  so 
state,  enumerating  the  different  classes  examined,  or  describing 
the  offices  or  depositories  from  which  the  information  was  ob- 
tained, but  where  it  is  made  from  indices,  kept  by  the  examiner, 
it  is  usual  to  certify  from  such  indices,^''^  which  is  a  much  safer 
plan  than  to  certify  from  the  records.  It  should  be  signed  by  the 
examiner  and  dated,  such  date  being  usually  the  date  of  the  ex- 
amination. The  annexed  form  of  certificate  will  cover  the  points 
investigated  in  an  ordinary  search : 

16  Weeks  v.  Dowing,  30  Mich.  4.  cific    order,    stating    his    desires.      An 

17  As  a  further  precaution  the  client       example    of    such    an    order    will    be 
is  frequently  required  to  make  a  spe-       found  in  the  apjH>ndix. 


104  ABSTRACTS   OF   TITLE.  [§  103 

We  have  examined  our  Indexes  to  records  in  Cook  county,  Illi- 
nois, and  find: 

No  conveyances  of  the  land  described  in  the  caption  hereto, 
executed  by  any  of  the  parties  named  herein  as  grantor  or  grantee, 
shown  thereby  to  have  been  recorded  in  the  Recorder's  office  of 
said  Cook  county,  Illinois,  since  January  25,  1875,  and  prior  to 
this  date,  and  no  proceedings  affecting  the  title  to  said  premises 
liad  in  any  of  the  courts  of  record  of  said  county,  except  as  shown 
on  the  ten  (10)  preceding  sheets.^^ 

No  judgments  rendered  in  any  court  of  record  in  said  Cook 
county,  Illinois,  against  John  M.  Smith  since  October  25,  1910,^^ 
and  prior  to  March  2,  1915,^^  nor  against  William  Thompson  since 
October  25,  1910,  and  prior  to  this  date,  which  are  a  lien  on  said 
premises  [or  which  we  consider  liens  on  said  premises]. 

Note. — No  examination  made  for  judgments  against  John  Smith, 
nor  against  John  Smith  with  irviddle  initial  other  than  "M." 
No  taxes,  or  tax  sales,  or  forfeitures  of  said  premises  remaining 
unredeemed  or  uncanceled  of  record  (except  as  shown). 

Williams  &  Jackson, 

Examiners. 
Chicago,  October  25,  1920. 

If  the  examination  commences  with  the  assumption  of  title  in 
a  given  person,  the  certificate  should,  for  the  better  protection  of 
the  examiner,  specify  such  person  by  name  and  the  statement  of 
conveyances  might  read  something  like  the  following: 

No  conveyances  of  the  land  described  in  the  caption  hereto, 
executed  by  John  M.  Smith,  sliown  thereby  to  have  been  recorded 
in  the  recorder's  office  of  sa/id  Cook  county,  Illinois,  since  Jan.  25, 

18  Although  the  examiner  may  only  in  a  majority  of  the  States  the  period 
certify  that  he  fi7uis  no  conveyances,  is  ten  years,  which  corresponds  to  the 
yet  this  is  equivalent  to  a  statement      illustration  above  given. 

that  none  exists.     McCoraher  v.  Com-  20  This  would  be  the  date  when  Johu 

mouwealth,  5  Watts  &  S.  (Pa.)  21.  M.   Smith  disposed  of  the  title,  and 

19  This  date  has  reference  only  to  hence  no  examination  would  be  made 
the  time  from  which  a  personal  judg-  concerning  him  after  that  date.  Wil- 
ment  is  a  lien  on  real  estate  and  not  to  liam  Thompson,  though  only  holding 
the  commencement  of  the  examination.  title  a  little  over  five  years,  must  yet 
In  Illinois  the  lien  only  exists  for  be  certified,  as  against  judgments,  for 
seven  years,  hence,  with  reference  to  a  period  equal  to  the  statutory  limita- 
the  date  of  the  certificate,  October  25,  tion,  which,  in  the  example,  is  ten 
1913,  would  have  been  a  proper  date  years. 

from  which  to  certify  judgments,  but 


§  103]  COMPILING  THE  ABSTRACT.  105 

1875,^^  and  none  hy  those  who  derived  title  through  said  Smith, 
named  in  the  foregoing  exami^iation  as  grantor  or  grantee,  etc. 

Where  instruments  have  been  shown  for  reference  only,  or 
where  under  the  general  caption  deeds  are  exhibited  of  parcels 
which  do  not  constitute  any  part  of  the  lands  in  question,  no  neces- 
sity exists  for  following  the  title  of  such  parcels  or  noting  its  sub- 
sequent devolution ;  as  where  a  Railroad  right  of  way  intersects  a 
division  or  tract  of  land.  It  is  advisable,  however,  to  call  attention 
to  this  fact,  either  by  a  note  following  the  abstract  of  such  deeds 
or  by  a  clause  in  the  final  certificate,  and  such  mention,  in  either 
case,  may  read  somewhat  as  follows : 

No  examination  for  conveyances  hy  or  judgments  against  the 
Illinois  and  Wisconsin  Railroad  Compuny  or  its  grantees. 

Where,  in  a  continuation,  no  conveyances  are  shown,  there  hav- 
ing been  no  change  of  title  since  the  last  examination,  the  state- 
ment as  to  conveyances  may  simply  recite  this  fact,  or,  if  desired, 
and  this  is  the  better  way,  a  special  certificate  may  be  made  with 
respect  to  the  record  owner  of  the  land,  as  shown  by  the  last  ex- 
amination, and  the  holder  of  such  incumbrances  as  may  appear 
thereon;  thus: 

No  conveyances  of  the  land  described  in  the  caption  hereto  exe- 
cuted hy  John  Brown  ^^  or  hy  James  Smith,^^  mortgagee,  shown 
thereby,  etc. 

Where  two  or  more  parcels  form  the  subject  of  the  examination 
and  the  caption,  in  technical  parlance,  is  a  "double  header,"  if 
the  examination  purports  to  be  from  different  dates  as  to  each  par- 
cel the  fact  must  find  appropriate  mention  in  the  certificate,  as 
per  example. 

No  conveyances  of  the  land  first  described  in  the  caption  hereto, 
executed  hy  any  of  the  parties  named  herein  as  grantor  or  gramtee, 
shown  therehy  to  have  heen  recorded,  etc.,  since  June  10,  1868, 
except  as  noted. 

No  conveyances  of  the  land  secondly  described  in  the  caption 
hereto,  executed,  etc.,  since  March  1,  18/0,  except  as  noted. 

21  The  date  of  the  assumption  of  23  The  encumbrancer  as  shown  by 
title  and  commencement  of  the  search.       the  last  examination. 

22  The    record    owner    as   shown   by 
the  last  examination. 


106  ABSTRACTS   OF   TITLE.  [§  103 

III  colli  iiiiuit  ions.  wluMi  no  lax  sales  have  oeciirred  durinjjr  the 
period  covered  hy  tlie  seareli,  say: 

Xo  tax  sales  had  since  Ihc.   UK   l.'>l!).^* 

Whei-e  a  sale  foi-  taxes  is  in  projjress  at  the  time  the  exaininatioii 
is  made  the  foi'egoing  should  be  eoiitiinied  by  adding '• 

and  prior  to  August  IC),  1920.^^ 
This  may  be  followed  by  a  brief  explanatory  note.    Thus : 

Note.— 27ic  sale  for  the  State,  Counti/  and  City  taxes  for  Wl'J, 
and  prior  years,  commenced  August  16,  1920,  hut  we  do  not 
certify  thereto. 

Of  late  years  it  has  become  customary  to  certify  Avith  respect  to 
special  assessments  and  when  the  land  in  question  is  located  in  a 
city  this  is  an  important  matter.  When  certifying  special  assess- 
ments at  any  time,  say : 

No  confirmed  special  assessments  remaining  unpaid,  which  ive 
consider  liens  on  said  premises.    (Except  as  shown.) 

When  certifying  special  assessments  since  the  date  of  the  last 
examination,  say: 

No  special  assessments  confirmed  since  January  15,  1918,  re- 
mmning  unpaid,  which  we  consider  liens  on  said  premises.  (Ex- 
cept as  sliown.) 

In  the  foregoing  examples  the  abstracts  are  supposed  to  have 
been  compiled  from  the  records  or  the  examiner's  indices,  and  are 
what  are  termed  "original  examinations."  Not  infrequently,  how- 
ever, the  examiner  is  called  upon  to  prepare  compilations  from 
former  examinations,  being,  in  effect,  digests  of  the  title  to  par- 
ticular tracts  shown  in  such  original  examination  in  a  general  way 
with  other  lands.  While  the  practice  is  not  recommended  there 
will  yet  be  many  cases  in  which  it  may  be  profitably  followed,  and, 
when   this  is  done,  the   concluding   certificate  should   specifically 

24  The    date    of    the    last    exaniina-  25  The    date   of    the    conimcni-eiiicnt 

tion.  of  the  sale. 


§  103]  COMPILING    THE   ABSTRACT.  107 

show  the  course  pursued  and  verify  the  correctness  of  the  compila- 
tion.    Thus : 

The  foregoing  Examination  of  Title  to  the  land  described  in  the 
caption  hereto,  is  a  compilation  from  the  following  several  exaonina- 
tions,  including  the  land  in  question,  heretofore  made  by  us,  viz.: 

To  the  West  half  of  the  South  East  quarter  of  Section  Ten, 
Town  Thirty-nine,  North,  Range  Fifteen,  East  of  the  Third  Prin- 
cipal Meridian,  dated  April  22,  1869. 

To  the  same  land  dated  March  1,  18,90. 

And  we  do  certify  that  same  is  a  true  and  correct  compilation 
from  said  several  examinations,  including  ail  conveyances  of  the 
land  described  in  the  caption  hereto,  made  by  the  parties  grantors 
or  grantees  ^lamiied  therein  and  shown  thereby  to  have  been  re- 
corded in  the  Recorder's  office  of  Cook  county,  Illinois,  prior  to 
the  dates  of  record  of  the  deeds  by  them  respectively,  up  to  and 
including  March  10,  1889.^^ 

In  like  manner  the  examiner  may  be  called  upon  to  fill  a  gap 
in  the  history  of  the  title.  While  the  caption  should  show  this 
fact,  in  the  manner  heretofore  indicated,  the  certificate  should  also 
be  made  with  special  reference  to  it  and  the  recitals  of  convey- 
ances, judgments,  etc.,  should  all  be  qualified  by  the  statement. 

And  prior  to  Jime  10,  1870, 

or  words  of  similar  import  which  clearly  mark  the  time  of  the 
termination  of  the  search.  The  certificate  should,  of  course,  bear 
date  as  of  the  actual  time  it  was  made. 

Frequently,  where  the  abstract  covers  a  large  quantity  of  land, 
duplicates  are  subsequently  desired,  and  the  examiner  is  requested 
to  make  copies.  To  these  copies  a  short  verification  should  be 
appended.     The  following  will  suffice : 

The  foregoing  ten  (10)  pages,  this  included,  is  a  true  copy  of 
the  original  Examination  of  Title. 

This  should  be  signed  by  the  examiner.  At  present,  copies  cer- 
tified by  a  notary  public,  or  any  person  other  than  the  examiner, 
are  not  considered  merchantable. 

26  This  is  the  date  to  be  covered  by 
the  search  and  from  which  a  continu- 
ation would  be  made. 


CHAPTER  VIII. 


INCEPTION  OF  TITLE. 


§104. 

Preliminary  stages  of  title. 

§117. 

§105. 

Inceptive  measures  under  the 

U.  S.  land  laws. 

§118. 

§106. 

Disposal  of  the  public  domain. 

§119. 

§107. 

Public  land  sales. 

§120. 

§108. 

Private  entry  of  lands. 

§121. 

§109. 

Nature   of   title   conferred   by 

§122. 

entry. 

§  123. 

§110. 

What   lands   subject  to   entry. 

§124. 

§111. 

Pre-emption  entries. 

§125. 

§112. 

Nature  of  pre-emption  rights. 

§126. 

§113. 

Conveyances  before  entry. 

§  126a, 

§114. 

Graduation  entries. 

§127. 

§115. 

Donation  entries. 

§128. 

§116. 

Homestead  entries. 

Rights  acquired  under  home- 
stead acts. 

Desert  land  entries. 

Timber  culture  entries. 

Location  by  military  warrant. 

Land  scrip. 

Swamp  land  grants. 

School  lands. 

Internal    improvement   grants. 

Land  grants  to  railroads. 

Public  highways. 

Private  land  claims. 

Who  may  acquire  title. 

Inceptive  measures  in  the  ab- 
stract. 


§  104.  Preliminary  Stages  of  Title.  All  of  the  lands  in  the 
National  Territories,  not  appropriated  by  competent  authority 
before  they  were  acquired,  are,  in  the  first  instance,  the  exclusive 
property  of  the  United  States,  to  be  disposed  of  to  such  persons, 
at  such  times,  in  such  modes,  and  by  such  titles,  as  the  Govern- 
ment may  deem  most  advantageous  to  the  public.  This  right  has 
been  uniformly  reserved  by  solemn  compact  upon  the  admission 
of  new  States,  and  has  always  been  recognized  and  scrupulously 
respected  by  the  States  within  which  large  portions  of  the  public 
lands  have  been  comprised,  and  within  which  some  of  these  lands 
are  still  remaining. 

The  system  adopted  for  the  disposition  of  the  public  lands  em- 
braces the  interests  of  all  the  States,*  and  proposes  the  equal  par- 
ticipation therein  of  all  the  people  of  all  the  States.  The  system 
is,  therefore,  peculiarly  and  exclusively  the  exercise  of  a  federal 
power,  and  the  mode  of  its  accomplishment,  as  well  as  the  evidences 
or  muniments  of  title  which  it  bestows,  are  all  the  work  of  federal 
functionaries.  Neither  State  nor  Territory  can,  in  any  manner, 
interfere  with  the  primary  disposal  of  the  lands.^ 


llrvine  v.  Marshall,  61  U.   S.   (20 
How.)   558. 


108 


§  105]  INCEPTION   OP    TITLE.  100 

Under  the  land  system  of  the  United  States,  there  are  a  number 
of  preliminary  or  inceptive  stages  of  title  before  its  final  divesture 
from  the  Government  and  consummation  in  the  purchaser.  They 
are  created  by  the  provisions  of  the  various  acts  of  Congress  in 
furtherance  of  the  development  of  the  country,  and  their  recital 
forms,  or  should  form,  the  initial  statements  of  every  abstract, 
whenever  the  examination  purports  to  show  a  connected  chain  of 
title  from  its  source,  the  general  Government.  Where  title,  as  in 
the  East,  is  derived  directly  from  the  State  as  the  original  pro- 
prietor, these  stages,  of  course,  do  not  appear,  nor  are  they  present 
where  title  is  deduced  from  ante-revolutionary  governments.  Titles 
derived  from  foreign  powers  prior  to  the  acquisition  of  the  soil  by 
the  United  States  are  respected  and  protected,  but  should  be  eon- 
firmed,  when  inchoate,  by  special  act  or  in  conformity  to  general 
laws  on  that  subject,^  the  title  in  such  cases  dating  from  the  con- 
firmation, though  relating  back  to  the  time  of  the  cession  of  the 
Territory  to  the  Government,  or  to  the  original  grant.^ 

§  105.  Inceptive  Measures  Under  the  U.  S.  Land  Laws.     The 

public  lands  are  sold  only  by  legal  divisions,  or  parcels,  made  in 
conformity  with  the  government  system  of  surveys,  and  title  is 
acquired  by  purchase  at  public  sale;  by  ordinary  "private  entry;" 
and  by  the  various  other  methods  provided  in  the  special  enact- 
ments of  Congress  known  as  the  pre-emption  acts,  homestead  acts, 
etc.  These  laws  and  regulations  for  the  disposal  of  the  public  do- 
main apply  only  to  individuals  who  take  direct  from  the  United 
States. 

Congress  has  also  at  different  times  by  special  legislation  granted 
to  the  States,  or  certain  of  them,  a  portion  of  the  public  lands  to 
aid  in  the  construction  of  great  internal  improvements ;  to  endow 
schools  and  encourage  education;  and  for  other  specific  purposes. 

These  various  measures,  for  the  most  part,  are  inceptive  and 
initiatory.  Though  creating  vested  interests,  and  granting  equi- 
table rights,*  the  legal  title  still  remains  in  the  original  grantor,* 

2  United  States  v.  King,  3  How.  firmations  have  been  extended  to  all 
773;  McMieken  v.  United  States,  97  claims  founded  on  titles  in  form, 
U.  S.   (7  Otto)  204.  orders  of  survey^  and  even  to  lands  to 

3  The  policy  of  the  United  States,  in  which  no  written  title  had  been  rc- 
the  adjustment  of  such  titles  has  corded,  where  the  claimants  had  made 
been  one  of  unexampled  liberality,  actual  settlements  before  the  change 
reserving    to   claimants    the    lands    to  of  sovereignty. 

which  they  asserted  titles  derived  from  4  Stark  v.   Starrs,  6  Wall.    (U.   S.) 

the  lawful  authorities  of  governments  402. 

which  held  sovereignty  over  the  terri-  6  Carman  v.   Johnson,  20  Mo.   108; 

tory  prior  to  its  acquisition,  and  con-  Hayward  v.  Ormsbee,  11  Wis.  3;  Wil- 


no 


ABSTRACTS   OP    TITLE. 


[§105 


to  pass  and  bet-ome  absolute  in  the  grantee,  only  on  the  perform- 
anee  oL"  preseribed  eonditious  or  in  due  eourse  of  law.  A  brief 
review  of  the  preliminary  steps  to  aequire  title  will  form  the  sub- 
ject of  the  succeeding  paragraphs. 

§106.  Disposal  of  the  Public  Lands.  The  public,  lands  of  ilie 
United  States  are  uniformly  brought  into  market  in  pursuance  of 
a  system  which  originated  in  the  year  1796  ^  and  was  perfected 
about  the  year  1820.  They  are  divided  into  two  classes,  designated 
respectively,  the  minimum  at  $1.25  per  acre,  and  the  double  mini- 
mum at  $2.50  per  acre,  and  may  be  purchased  in  tracts  of  from 
40  to  640  acres,  or  in  larger  bodies  if  the  same  can  be  found  vacant. 
In  eases  of  public  sale  or  private  entry  the  law  requires  the  price 
to  be  paid  in  cash  at  the  time  of  purchase.'''  For  a  period  of  twenty 
years,  beginning  with  the  commencement  of  the  last  century,  the 
lands  were  sold  on  credit,  at  not  less  than  $2.00  per  acre ;  but  the 
credit  system  not  working  satisfactorily,  in  1820  it  was  abandoned 
and  the  price  reduced  to  $1.25  per  acre.  The  $2.50  per  acre  lands 
are  such  as  lie  within  the  limits  of  railroad  or  internal  improve- 
ment grants.  Exceptions  to  these  rules  are  made  under  the  pre- 
emption and  homestead  laws,  which  will  be  noticed  hereafter.  The 
lands  are  first  required  to  be  surveyed,  then  advertised  and  ex- 
posed for  sale  at  public  auction,  after  which,  whatever  remains  is 
subject  to  private  entry,  location,  etc.,  at  fixed  prices." 


cox  V.  Jackson,  13  Pet.    (U.  S.)    498. 

6  The  first  treaty  extinguishing  the 
Indian  title  was  not  effected  until 
1795,  but  not  a  year  had  elapsed  from 
the  definitive  treaty  of  peace  in  17So 
before  the  Congress  of  the  Confedera- 
tion took  the  initiative  for  establish- 
ing a  system  for  the  disposal  of  the 
then  existing  western  lands,  and  on 
May  20,  1785,  the  requisite  ordinance 
for  that  purpose  was  passed,  by  which 
the  Board  of  Treasury  was  authorized 
to  dispose  of  the  surveyed  lands  in  the 
western  territory,  commencing  sales 
at  New  York  or  Philadelphia,  with 
power  to  adjourn  to  any  part  of  the 
United  States. 

7  See  instructions,  Sec 'y  Interior, 
Sept.  10,  1849;  March  10,  1869. 

8  The  first  method  of  disposal  was 
by    offering    at    public    sale    for    such 


price,  above  a  fixed  minimum,  as  the 
lands  would  bring,  and  after  this  to 
purchase  by  private  entry,  on  a  credit 
at  a  minimum  in  excess  of  the  lowest 
price  now  admissible  by  law.  In  the 
progress  of  events  the  national  legisla- 
ture took  cognizance  of  actual  settlers, 
giving  them  precedence  and  prefer- 
ence in  the  purchase  of  the  public 
lands,  and,  relieving  them  of  the  neces- 
sity of  competing  at  public  auction 
with  ordinary  purchasers,  permitted 
them,  on  very  liberal  terms  and  at 
the  lowest  price,  to  secure  titles  to 
actual  settlements.  This  policy  con- 
tinued restrospective  until  after  the 
operation  of  the  pre-emption  law  of 
1830,  and  its  supplements,  and  up  to 
the  passage  of  the  permanent  prospec- 
tive pre-emption  system  by  the  act  of 
Sept.  4,  1841.    Congress  has  also  dealt 


§  108]  INCEPTION   OF    TITLE.  Ill 

§107.  Public  Land  Sales.  The  public  sales  arc  licld  in  \)ur- 
suaiice  of  a  proclamation  by  the  President,®  or  of  a  public  notice 
given  in  accordance  with  directions  from  the  General  Land  Office." 
At  this  sale  the  lands  are  offered  at  a  minimum  price,  and  cannot 
be  sold  for  less,  but  may  be  sold  for  as  much  more  as  any  one  will 
give.  On  payment  of  the  price  for  which  the  land  is  sold,  the 
Receiver  of  the  local  land  office  issues  his  receipt  as  in  other  cases 
and  the  sale  is  noted  on  the  tract  books  of  the  Register.  The  law 
limits  the  duration  of  the  sale  to  two  weeks,  and  in  case  of  a  shorter 
period  private  entries  are  not  permitted  until  the  expiration  of 
that  term.  Comparatively,  only  a  small  portion  of  the  public  lands 
are  disposed  of  by  this  method. 

§108.  Private  Entry  of  Lands.  The  term  "entry,"  as  applied 
to  appropriations  of  public  land,  is  said  to  have  been  borrowed 
from  the  State  of  Virginia  where  it  has  been  used  in  that  sense 
from  a  very  remote  period.  It  has  now  a  fixed  and  definite  signifi- 
cation in  the  legal  nomenclature  of  the  country,  and  means  that 
act  by  which  an  individual  acquires  an  inceptive  right  to  a  por- 
tion of  the  unappropriated  soil  of  the  country  by  filing  his  applica- 
tion for  same  in  the  office  of  the  designated  land  agents  of  the 
Government,  and  is  confined  to  the  right  of  purchase  at  private 
sale." 

The  entry  is  made  by  presenting  to  the  Register  of  the  district 
land  office  a  written  application  describing  the  tract  desired,  to 
which  the  Register  attaches  his  certificate,  setting  forth  the  fact  of 
such  tract  being  at  the  time  subject  to  private  entry  and  specifying 
the  price  per  acre.     The  application  is  then  taken  to  the  Receiver 

with  lands  which  had  been  in  the  mar-  9  In  the  early  periods  of  the  history 
ket  ten  years  or  longer  by  reducing  of  the  country,  Congress,  in  some 
these  to  actual  settlers  at  low  rates,  cases,  fixed  by  law  the  times  at  which 
but  this  benign  policy  having  led  to  public  sales  in  particular  land  dis- 
abuse and  speculation,  Congress  re-  tricts  should  be  held,  and  in  others 
seinded  the  law,  yet  not  without  in-  directed  the  sales  to  commence  at  such 
dicating  a  continued  interest  in  the  times  as  the  President  should  fix  by 
actual  settler  in  passing  the  homestead  proclamation.  But  by  the  act  of  April 
act  of  May  20,  1862,  by  which  any  24,  1820,  regulating  land  sales  gener- 
citizen  can  secure  a  farm  compara-  ally,  it  became  the  duty  of  the  Presi- 
tively  without  cost.  dent  to  proclaim  and  offer  for  sale 
Under  present  laws  public  lands  all  the  public  lands  as  they  might  be 
containing  mineral  deposits,  either  of  surveyed  and  prepared  for  market, 
coal  or  precious  metals,  are  reserved  10  Rev.  Stat.  U.  S.  §  2353  et  fieq. 
from  entry  as  agricultural  lands  and  H  Chatard  v.  Pope,  12  Wheat.  (U. 
sold  at  spei'ial  prices  varying  from  S.)  586. 
$5.00  to  $20.00  per  acre. 


112  ABSTRACTS   OF   TITLE.  .  [§  108 

to  whom  payment  is  made,  and  who  in  return,  gives  duplicate  re- 
ceipts, one  of  which  is  retained  by  the  applicant,  to  be  surrendered 
on  receiving  his  patent,  and  the  other,  together  with  the  applica- 
tion, is  delivered  to  the  Register,  who,  after  placing  the  applica- 
tion on  file,  issues  his  certificate  of  purchase  of  the  land.  The 
application,  accompanied  by  the  Register's  corresponding  cer- 
tificate of  purchase,  is  then  forwarded  to  the  General  Land  Ofifice 
for  oilficial  action. ^^ 

Patents  do  not  issue  in  the  usual  course  of  business  in  the  Gen- 
eral Land  Office  until  several  years  after  the  entry  has  been  made, 
though  conveyances  with  warranty  are  freely  made,  and  the  prop- 
erty frequently  passes  through  many  hands  on  the  strength  of  the 
inchoate  title  conferred  by  entry  and  payment.  The  recital  of  this 
entry  forms  the  first  statement  of  the  abstract  of  all  lands  ac- 
quired in  this  manner,  and  should  be  followed,  whenever  prac- 
ticable, with  the  Receiver's  duplicate  certificate  of  purchase  and 
pajonent. 

§109.  Nature  of  Title  Conferred  by  Entry.  The  practice  of 
dating  the  legal  title  from  the  date  of  the  entry  is  followed  in 
many  of  the  States,*^  yet  nothing  passes  a  perfect  title  to  public 
lands,  with  one  exception,  but  a  patent."  The  exception  being  where 
Congress,  by  special  act,  conveys  land  in  words  of  present  grant.*' 
Congress  has  the  sole  power  to  make  and  authorize  appropriations 
of  the  public  lands  *^  and  to  declare  the  effect  and  dignity  of  titles 
emanating  from  the  United  States,*''  and  the  whole  legislation  of 
the  federal  government  in  relation  thereto  declares  the  patent  the 
superior  and  conclusive  evidence  of  legal  title ;  until  it  issues  the 
fee  remains  in  the  government.**  The  entry  can  only  come  in  aid 
of  the  legal  title,  and  is  no  evidence  of  such  standing  alone,  when 
opposed  to  a  patent  for  the  same  land.*® 

12  1  Lester's  Land  Laws,  311;  Kev.  16  United  States  v.  Fitzgerald,  1") 
Stat.  U.  S.,  §2245  et  seq.;  and  see  Pet.  407;  Farrington  v.  Wilson,  29 
Cir.  Gen.  Land  Office,  March  1,  1884.  Wis.  ;^83. 

13  O'Brien  v.  Perry,  1  Black.  132;  17  Ba^ell  v.  Broderick,  13  Pet. 
Tidd    V.    Rines,    26    Minn.    201;    Bui-  436, 

lock   V.  Wilson,   5  Port.    (Ala.)    338;  18  Peak  v.  Wendel,  5   Wheat.  293 

Burdick  v.  Briggs,  11  Wis.  126.  Hooper    v.    Scheimer,    23    How.    235 

14  3   Opinions  Att'y   Gen.   91;    Car-  Hayward    v.    Ormsbee,    11    Wis.    3 
man  v.  Johnson,  20  Mo.  108.  Bronson  v.  Kukuk,  3  Dill.  490. 

15  3  Opinions  Att'y  Gen.  350;  9  do.  19Bnird   v.   Wolf,   4   McLean.   549; 
346;    11   do.  47;    Grignon's  Lessee  v.  Peak  v.  Wendel,  5  Wheat.  293. 
Astor,  2   Howard,   319;    Challefoux  v. 

Dii<^hnrmp,  4  Wis.  554. 


§  109]  INCEPTION   OF   TITLE.  113 

But  a  party  who  has  complied  with  all  the  terms  and  conditions 
which  entitle  him  to  a  patent  for  a  particular  tract  acquires  a 
vested  interest  therein,  and  is  to  be  regarded  as  the  equitable 
owner  thereof,  the  government  simply  retaining  the  formal  legal 
title  in  trust  for  the  purchaser  until  the  patent  issues-^**  The  right 
to  a  patent  once  vested  is  equivalent,  as  respects  the  government, 
to  a  patent  issued;  and  when  the  patent  is  issued  it  relates,  so 
far  as  may  be  necessarj^  to  cut  off  intervening  claimants,  to  the 
inception  of  the  right  of  the  patentee.^i  The  interest  thus  ac- 
quired is  a  recognized  property  which  courts  will  respect  and  pro- 
tect,^^  and  has  been  held  to  be  a  valid  subject  of  sale  or  transfer.'^^ 
In  such  case  the  assignment  of  the  certificate  of  entry  passes  the 
equitable  title  to  the  land,*^*  or,  if  intended  as  collateral  security 
creates  an  equitable  lien.^s  On  filing  the  assignment  of  the  cer- 
tificate in  the  General  Land  Office,  patent  will  issue  to  the  assignee 
with  the  same  effect  as  to  the  original  purchaser,^^  or  if  issued  to 
the  original  purchaser  he  will  take  only  as  trustee  for  the  true 
owner.2'  Assignments  are  not  frequently  met  with  on  the  records. 
As  a  rule,  the  early  proprietors  disposed  of  their  interests  under 
the  entry  by  deed  of  bargain  and  sale,  and  usually  with  covenants 
of  seizin  and  warranty.  The  receiver's  receipt  was  usually  placed 
on  record  as  the  foundation  of  title,  while  the  patent,  in  the  muta- 
tions through  which  the  property  afterward  passed,  was  often 
overlooked  and  frequently  forgotten.^® 

The  effect  of  location  or  entry  in  due  form,  is  to  segregate  the 
land  from  the  public  domain  and  subject  it  to  private  ownership, 
with  all  the  incidents  and  liabilities  thereof.  While  such  location 
is  in  force  no  other  can  lawfully  be  made ;  ^^  the  public  faith  has 
then  become  pledged  to  the  locator  and  any  subsequent  grant  of 
the  same  land  would  be  void,  unless  the  first  location  or  entry  is 

20  Worth  V.  Branson,  98  U.  S.  (8  26  Instructions  Sec'y  Interior;  1 
Otto)  118;  Waters  v.  Bush,  42  Iowa,  Lester's  L.  L.  351;  Clark  v.  Hall,  19 
255.  Mich.  356. 

21  Stark  V.  Starrs,  6  Wall.  402 ;  Tay-  27  Stark  v.  Mather,  1  Walker 
lor  V.  Brown,  5  Cranch,  234;  Morrill  (Miss.),  181;  Magruder  v.  Esmay,  35 
V.  Chapman,  35  Gal.  88;  Astrom  v.  Ohio  St.  221;  Cunningham  v.  Ashley, 
Hammond,  3  McLean,  107.  14  How.  377. 

22  Gains  v.  Hale,  26  Ark.  168;  Mc-  28  Hundreds  of  thousands  of  uu- 
Lane  v.  Dovee,  35  Wis.  27.  called  for  patents  are  yet  remaining 

23  Carrall  v.  Safford,  3  How.  460 ;  in  the  files  of  the  General  and  local 
Hutchings  v.  Low,  15  Wall.  88.  land  offices.    Gen.  Land  Office  Report, 

24SiUyman  v.  King,  36  Iowa,  207;       1875. 
Meyers  v.  Croft,   13  Wall.   291;   Bur-  29  Simmons   v.   Wagner,   101    U.    S. 

dick  V.  Wentworth,  42  Iowa,  440.  251. 

25  Wallace   v.   Wilson,   30  Mo.   335. 
Warvelle  Abstracts— 8 


114  ABSTRACTS   OF    TITLE,  [§  109 

sot  asido.^'  It  is  witliin  llie  ])ovvor  of  the  Coniraissioner  of  the 
Cenoral  Land  Office,  however,  to  cancel  entries  of  public  lands  at 
any  time  before  patent  issues,  on  proof  that  the  entryman  has 
failed  to  comply  with  the  law.^* 

§110.  What  Land  Subject  to  Entry.  It  is  a  fiiiidamenial 
princijile.  nnderlyingj  the  land  system  of  the  country,  that  private 
entries  of  the  public  lands  are  never  permitted  unless  Conprress 
by  special  act  order  otherwise,  until  after  such  lands  have  been 
exposed  at  public  auction  at  the  price  for  which  they  are  after- 
ward subject  to  entry.'^  Where  lands  had  been  surveyed  but  not 
exposed  at  public  sale  they  might  formerly  be  obtained  Tinder  the 
provisions  of  the  pre-emption  law,  in  which  manner  larp:e  portions 
of  the  valuable  lands  in  the  States  admitted  since  1841,  have  been 
taken  up.^*  Lands  known  as  "mineral/'  including  deposits  of  the 
precious  metals,  coal,  and  salines,  are  not  subject  to  ordinary  pri- 
vate entry  and  are  disposed  of  in  accordance  with  special  acts,'* 
the  general  procedure,  however,  being  the  same.  Nor  can  lands 
l)e  entered  which  have  been  reserved  for  any  purpose,  or  other- 
wise withdrawn  from  market.'^ 

§111.  Pre-emption  Entries.  As  has  been  shown,  in  tlie  earli<M- 
stages  of  our  land  system,  no  right  or  interest  could  be  secured  by 
the  individual  in  any  public  land  until  it  had  been  surveyed  into 
legal  divisions ;  nor  after  this  had  been  done  was  it  subject  to  sale 
until  by  a  proclamation  of  the  president,  it  was  brought  into  mar- 
ket. This  proclamation  always  fixed  a  time  and  place  when  the 
lands  within  a  given  district  were  offered  for  sale  at  public  auc- 
tion ;  and  until  all  of  them  were  sold,  which  could  be  sold  in  this 
manner,  at  prices  above  the  minimum  fixed  by  law,  no  one  could 
make  a  private  entry  of  a  particular  tract  or  establish  a  claim  to 
it.  The  scenes  of  violence,  fraud  and  oppression,  and  the  com- 
binations which  attended  these  sales,  as  well  as  the  wrongs  per- 
petrated under  them,  led  to  the  law  of  pre-emption.  It  often 
occurred  that  emigration,  in  advance  of  the  readiness  of  the  pub- 
lic lands  for  these  sales,  had  caused  hundreds  and  thousands  to 
settle  on  them;  and  when  thej^  came  to  be  sold  at  public  auction, 

80  Worth  V.  Branson,  8  Otto,  118;  33  Meyers  v.  Croft,  13  WaU.  291. 

Lytle   V.   Arkansas,   9    How.    314;    U.  34  Act,  July  26th,  1866. 

S.  V.  Fitzgerald,  15  Pet.  401.  36  Hot   Spring   Cases,   92   U.   S.    (2 

SlJones  V.  Meyers,  2  Idaho,  793.  Otto)  698;  Bellows  v.  Todd,  39  Iowa, 

82Eldred  v.   Sexton,   19  Wall.   189;  209. 
do.  30  Wis.  189.     See  also  4  Opinions 
Att'y  Gen.  167. 


§11]]  INCEPTION   OF   TITLE,  115 

their  value,  enhanced  by  the  houses,  fences  and  other  improve- 
ments of  tlie  settler,  placed  them  beyond  his  reach,  and  they  fell 
into  the  hands  of  heartless  speculators.  To  remedy  this  state  of 
tilings  the  pre-emption  system  was  established.^^ 

It  was  subsequently  found,  however,  that  the  system  was  sub- 
ject to  much  abuse  and  that  many  pre-emption  filings,  as  well  as 
entries,  were  made,  or  caused  to  be  made,  for  speculative  purposes 
only.  In  view  of  this  fact,  and  of  the  further  fact  that  all  of  the 
advantages  of  the  system  were  afterward  embraced  in  the  home- 
stead laws,  its  repeal  was  frequently  urged  by  the  General  Land 
Office.  Finally,  it  became  manifest  that  the  pre-emption  laws  had 
outlived  their  usefulness  and  so,  after  an  existence  of  nearly  a 
century,  on  March  3,  1891,  the  system  was  formally  abolished. 

A  "pre-emption  claim"  conferred  upon  the  settler  the  exclusive 
right  to  purchase,  at  a  minimum  price,  the  public  land  upon  which 
he  had  settled  in  conformity  to  the  acts  of  Congress  on  that  sub- 
ject.^' This  policy  of  securing  to  individuals  a  preference  right  to 
purchase,  had  its  origin  at  about  the  commencement  of  the  last 
century,  and  at  first  was  confined  to  lands  which  had  been  sur- 
veyed, but  gradually  this  was  changed  until  in  1862,^*  pre-emptions 
were  allowed,  under  proper  restrictions,  on  unsurveyed  lands  as 
well. 

The  laws  on  this  subject  are  numerous,  beginning  as  early  as 
May  10,  1800,  which  allowed  pre-emptions  in  the  country  north- 
west of  the  Ohio  river,  and  were  at  first  restricted  to  particular 
classes  and  localities,  until  the  act  of  September  4,  1841,^^  and 
supplemental  act  of  March  3,  1853,*°  which  superseded  all  previous 
laws  and  became  the  general  pre-emption  system.*^  Under  this 
law  the  settler,  possessing  the  prescribed  qualifications,  who  had 
entered  upon  public  land,  making  improvements  and  bringing  the 
same  under  cultivation,  and  otherwise  conforming  to  specified  re- 
quirements, acquired  a  prior  and  exclusive  right  to  purchase,  and 
was  protected  in  the  enjoyment  of  his  claim  from  intrusion  or 
trespass  by  others.*^    To  fix  these  rights,  he  was  required,  where 

36  See,  Atherton  v.  Fowler,  6  Otto  to  public  sale.  The  enactments  grant- 
(U.  S.)   513.  ing    pre-emption    rights,    before    this 

37  Dillingham  v.  Fisher,  5  Wis.  475.  time,  were  mainly  in  the  nature  of  re- 
38 12  Stat,  at  Large,  418.  lief  laws,  by  which  trespasses  were 
89  5  Stat,  at  Large,  457.  waived,  and  a  preference  was  given 
40 10  Stat,  at  Large,  244.  to  those  who  were  occupying  public 
41  Prior  to  the  year  1841,  the  legis-  lands  at  the  dates  of  the  several  laws. 

lation    of    Congress    had    not    encour-  42  Coleman  v.  Allen,  5  Mo.  App.  127, 

aged  settlements  upon  the  public  and  see,  Cir.  Gen.  Land  Office,  March 
lands  before   they  had  been  exposed      1,  1884. 


no  ABSTRACTS    OF    TITLE.  [§111 

tlie  laiul  at  llie  lime  of  scltleiucnl  was  subject  to  private  entry,  to 
tile  with  tlie  Register  a  deelaratoiy  statement,  describing  tlie  land 
settled  upon,  and  reciting  his  intention  to  claim  the  same  under 
the  provisions  of  the  pre-emption  act,  and  within  twelve  months 
thereafter  to  make  proof  of  settlement  and  payment ;  failing  in 
these  particulars  the  land  so  settled  or  improved  would  be  subject 
to  the  entry  of  any  other  person.  Bj'-  the  act  of  May  30,  1862,*' 
the  pre-emption  claimant  of  unsurveyed  lands  was  required  to  file 
his  declaratory  statement  within  three  months  from  the  date  of 
the  receipt  at  the  district  land  office  of  the  approved  plat  of  the 
township  embracing  such  pre-emption  settlement.** 

§  112.  Nature  of  Pre-emption  Rights.  The  right  of  pre-emp- 
tion attached  only  to  such  public  lands  as  were  subject  to  the 
operation  of  the  general  land  system  of  the  country,  and  not  to 
those  which  had  been  taken  out  of  the  class  of  public  lands  and 
appropriated  to  specific  objects,  or  reserved  for  particular  pur- 
poses.*^ No  title,  either  legal  or  equitable,  was  conferred  by  the 
pre-emption  laws.  They  gave  merely  a  naked  right  to  purchase 
and  acquire  title  within  a  specified  time,  on  compliance  with  cer- 
tain conditions.*^  The  settler  acquired,  and  could  acquire,  no 
vested  interest  in  the  land  he  occupied  by  virtue  simply  of  settle- 
ment ;  *'  the  land  continued  subject  to  the  absolute  disposing  power 
of  Congress  until  all  the  necessary  legal  steps  to  perfect  an  entry 
thereof  had  been  taken.**  Before  this  the  settler  had  nothing  but 
a  contingent,  personal  privilege  to  become,  without  competition, 
the  first  purchaser  of  the  property,  a  privilege  which  he  might 
never  exercise,  or  which  he  might  waive  or  abandon. 

The  interest  acquired  by  a  pre-emption  right  is  not  an  estate 
within  any  definition  known  to  the  common  law.*^  It  could  not  be 
sold,  so  as  to  vest  the  purchaser  with  any  rights  in  the  land,  and 

43  12  Stat,  at  Large,  418,  49  Delaunay     v.     Burnett,     4     Gilm. 

44Megerle  v.  Ashe,  47  Cal.  632.  (111.)  484. 

45  3  Opinions  Att  "y  Gen.  456.  50  Moore    v.    Jordan,    14    La.    Ann, 

46  Woodward  v.  McEeynolds,  2  Pin.  414;  Quinn  v.  Kenyon,  38  Cal.  499; 
(Wis.)  268;  Brown  v,  Throckmorton,  Morgan  v.  Curtenins,  4  McLean,  366; 
11  111.  529;  Hemphill  v.  Davies,  38  Brewster  v.  Madden,  15  Kan.  249;  but 
Cal.  577.  see  Delaunay  v.  Burnett,  4  Gilm.  (111.) 

47  Opinions  Att'y  Gen.  56;  Burgess  454,  Phelps  v.  Smith,  15  111.  572, 
V.  Gray,  16  How,  48.  where  the  interest  is  regarded  as  prop- 

48Frisbie  v.  Whitney,  9  Wall.  187;  erty  which  may  pass  by  deed,  the  pur- 

Busch    V.    Donohue,    31    Mich.    482;  chaser  being  regarded  as  the  "legal 

Yosemite  Valley  Case,  15  Wall.  77;  E.  representative"  of  the  original  claim- 

R.  Co.  V.  Tevis,  41  Cal.  489 ;  Witten-  ant ;  also.  Bowers  v.  Kuscher,  14  Iowa, 

brock  V.  Wheadon,  128  Cal.  150.  301. 


§  113]  INCEPTION   OP    TITLE.  117 

such  a  sale  would  extinguish  the  pre-emptor  's  own  right.^®    Neither 
could  it  be  conveyed  by  devise.^^ 

But  should  the  pre-emptor  die  without  establishing  his  claim 
within  the  period  limited  by  law,  his  rights  thus  initiated  were 
still  preserved,  and  the  title  might  be  perfected  by  his  personal 
representatives  or  his  heirs,  provided  the  entry  was  made  during 
the  period  in  which  the  pre-emptor  would  have  been  entitled  to  do 
so,  had  he  lived,  and  patent  would  be  issued  accordingly.^^  j^ 
such  event,  however,  while  resort  might  be  had  to  the  laws  of  the 
State  under  which  the  descent  was  cast  for  the  purpose  of  deter- 
mining who  were  the  heirs,  yet  the  heirs  did  not  take  the  land  by 
inheritance  from  their  ancestor  but  by  direct  conveyance  from  the 
United  States,  and  the  portion  taken  by  each  heir  is  determined, 
not  by  the  law  of  inheritance  but  by  the  terms  of  the  conveyance.^^ 

§113.  Conveyances  before  Entry.  The  benefits  of  the  pre- 
emption acts,  being  intended  only  for  the  actual  settler,  were 
personal  in  their  application,  the  12th  section  of  the  act  of  1841  5* 
providing  that  "all  assignments  and  transfers  of  the  right  hereby 
secured  prior  to  the  issuing  of  the  patent  shall  be  null  and  void ; ' ' 
and  to  prevent  speculators  from  acquiring  the  land,  the  applicant, 
before  being  allowed  to  enter  same,  was  required  to  swear  that  he 
has  not  contracted  it  away,  nor  settled  to  sell  on  speculation,  and 
any  grant  or  conveyance  made  by  him  before  entry  is  declared 
void,  with  an  exception  in  favor  of  bona  fide  purchasers  for  a 
valuable  consideration.  This  restriction  has  been  held,  however, 
to  extend  only  to  the  right  to  pre-emption;  that  is,  the  preference 
right  to  purchase  at  a  minimum  price,  no  matter  what  the  value 
might  be  when  the  time  limited  for  perfecting  the  pre-emption  had 
expired,^^  leaving  the  pre-emptor  free  to  sell  or  otherwise  dispose 
of  the  land  after  the  entry  had  been  made.^^ 

Since  the  passage  of  the  act  of  1841,  in  those  parts  of  the  United 
States  where  that  act  applied,  the  right  to  sell  has  been  freely 
exercised  after  the  claim  had  been  proved  up,  the  land  paid  for 

61  Rogers  v.  Clemmans,  26  Kan.  but  it  is  estimated  that  there  has  beeu 
522.  disposed    of    under    the    pre-eniptiou 

62  Rev.  Stat.  U.  S.  §  2269.  It  is  system,  since  its  inauguration,  about 
impossible  to  state  the  number  of  en-  200,000,000  acres. 

tries  made  under  the  pre-emption  laws,  53  Wittenbrock  v.  Wheadou,  128  Cal. 

because    the    system    of    the    General  150. 

Land  Office  carries  them  into  ' '  cash  64  5  Stat,  at  Large,  457. 

entries"  and  they  are  therefore  em-  55  JJeyers  v.  Croft,  13  Wall.  291. 

braced    in    the    annual    cash    receipts  56  Robbins  v.  Bunn,  54  111.  48. 

from  sale  of  land  under  various  laws, 


118  ABSTRACTS   OP   TITLE.  [§  113 

and  lilt'  certilii-ate  of  entry  received;  the  pre-emptor  then  standing 
in  the  same  relation  to  the  i>ovei'nHient  as  other  purchasers,*''  and 
though  the  patent  may  only  issue  to  the  purchaser,  it  will  inure  to 
the  benefit  of  his  grantee.**  By  proof  and  payment  the  equities  of 
the  claimant  are  matured  and  complete,  and  while  the  right  of 
government  to  dispose  of  its  own  property  is  undisputed,  as  well 
to  prescribe  rules  for  the  disposition  of  same,  yet,  subject  to  these 
well-known  principles,  parties  rightfully  in  possession  of  the  soil 
may  make  valid  contracts,  even  concerning  the  title,  predicated 
upon  the  hypothesis  that  they  may  thereafter  lawfully  acquire 
such  title,  except  in  eases  where  Congress  has  imposed  positive 
restrictions.*® 

§  114.  Graduation  Entries.  In  order  to  further  facilitate 
settlement  and  encourage  the  sale  of  public  lands  to  actual  settlers 
and  cultivators,  Congress,  by  the  act  of  August  4,  1854,^**  provided 
for  a  graduated  scale  of  prices,  for  lands  which  had  been  in  the 
market  for  ten  years  and  upward,  ranging  from  12^2  cents  to 
$1.00  per  acre.  This  act  remained  in  force  until  June  2,  1862, 
when  it  was  repealed.^^  In  its  essential  features  it  closely  re- 
sembled the  pre-emption  law,  to  which  it  was  in  fact  an  aid.  The 
lands  could  also  be  purchased  for  cash  at  the  graduated  price. 
Like  the  pre-emption  law,  the  rights  conferred  by  this  act  were 
personal,  and  because  of  actual  settlement  and  cultivation,  made 

57  Cady  v.  Eighmey,  54  Iowa,  615.  act  passed  March  3,  1857,  the  patents 

58  Camp  v.  Smith,  2  Minn.  155.  were   delivered,   on   application   there- 
69  Lamb  v.  Davenport,  18  Wall.  307.       for,  without  the  proof  being  required 

In  California  it  has  been  held  that  a  in  all  such  cases,  where  the  entry  was 

mortgage  made  before  proof  and  pay-  allowed  prior  to  the  passage  of  that 

ment,   might  be   enforced  after  entry  act,  and  where  it  was  not  found  to  be 

had  been  perfected:     Clark  v.  Baker,  fraudulently  or  evasively  made.     Sub- 

14  Cal.  612;  Christy  v.  Dana,  34  Cal.  sequent   to   the   passage  of   that  act, 

548.     See  also  Reasoner  v.   Markley,  and  prior  to  June  2,  1862,  when  the 

25  Kan.  635.  graduation  law  was  repealed,  a  large 

60  10  Stat,  at  Large,  574.  number  of  entries  were  allowed  under 

61  Thousands  of  entries  were  made  that  law,  and  in  the  course  of  busi- 
nnder  the  provisions  of  this  act,  the  ness  there  caine  to  be  many  patents 
quantity  of  land  sold,  as  shown  by  for  entries  so  allowed,  the  delivery  of 
the  reports  of  the  General  Land  Office,  which  was  suspended  for  the  reason 
aggregating  nearly  26,000,000  acres.  that  the  requisite  proof  was  not  forth- 
It  is  still  possible  that  in  some  few  coming.  To  this  class  of  cases  the 
cases  patents  have  not  been  issued  confirmatory  principles  of  the  act  of 
on  the  entries  made,  as  there  were  March  3,  1857,  were  made  applicable 
many  cases  in  which  the  required  by  the  act  of  Feb.  17,  1873,  and  the 
proof  of  settlement  and  cultivation  issuing  of  patents  has  since  continued. 
was  wanting,  but  under  a  confirmatory 


§  115]  INCEPTION   OF    TITLE.  119 

or  contemplated.  Assignments  of  the  rights  acquired  under  the 
acts  were  expressly  prohibited  and  wholly  disregarded,  and  the 
patents  in  every  instance  issued  to  the  original  purchaser. 

The  method  of  acquiring  title  under  graduation  acts  was  sub- 
stantially the  same  as  under  the  pre-emption  laws,  with  only  a 
slight  difiPerence  in  details.  It  is  not  customary,  nor  is  it  neces- 
sary, to  incorporate  in  the  abstract  the  inceptive  details  prior  to 
entry.  The  matter  is  optional  with  the  examiner,  but  the  entry  is 
the  first  material  stage. 

§115.  Donation  Entries.  In  a  few  localities  initiations  of 
title  will  be  found  under  what  are  known  as  the  "Donation  Acts." 
These  acts  were  a  series  of  laws  designed  to  induce  settlements  on 
the  public  lands  in  dangerous  or  distant  parts  of  the  nation.  They 
were  all  local  in  character  as  well  as  temporary  in  their  applica- 
tion, and  all  of  them  have  long  since  expired  by  their  own  limita- 
tion. In  their  practical  features  they  resembled  the  present  home- 
stead law,  of  which,  indeed,  they  were  the  precursors.  The  first 
of  these  laws,  passed  in  1842,^^  -^^s  had  in  view  of  the  Indian  diffi- 
culties in  Florida,  and  provided  for  the  donation  of  one  quarter 
section  of  land  to  any  person,  able  to  bear  arms,  who  should  make 
an  actual  settlement  within  a  certain  portion  of  the  peninsula.^^ 
In  1850,®*  a  still  more  liberal  act  was  passed  with  special  refer- 
ence to  the  Territory  of  Oregon,  and  when  in  1853  the  Territorial 
government  of  Washington  Territory  was  established,  its  terms 
were  extended  over  that  Territory.  This  act  donated  from  a 
quarter  to  an  entire  section,  a  premium  being  placed  on  matri- 
mony by  a  double  allowance  to  a  married  man,  and  by  permitting 
the  wife  to  retain  the  ownership  of  half  the  land  in  her  own  right.®^ 
Residence  on  and  cultivation  of  the  land  for  four  consecutive  years 
was  necessay  to  insure  a  patent  from  the  government.  The  act 
expired  Dec.  1,  1855.  In  1854  ®®  a  similar  act  was  passed  with 
special  reference  to  the  Territory  of  New  Mexico,  except  that  the 
grant  was  restricted  in  quantity  to  160  acres,  and  available  only 
by  males  then  residing  in  the  Territory  or  who  should  remove 
there  prior  to  1858.®' 

62  5  Stat,  at  Large,  502.  tificates    were    issued   under    this    law 

63  This    law,    which    was    variously       covering  aliout  3,000,000  acres, 
amended,  resulted  in  the  patenting  of  66  10  Stat,  at  Large,  308. 

1,317  claims.  67  Less    than    200    certificates    have 

64  9  Stat,  at  Large,  496.  been  issued  under  this  law. 

65  Upwards   of   8,000   donation   ccr- 


120  ABSTIt<VCTS   OF   TITLE.  [§  116 

§116.  Homestead  Entries.  Until  1S62,  Congress  had  passed 
no  general  law  offering  the  public  domain  in  a  limited  quantity 
to  any  person  who  would  cultivate  and  make  a  permanent  home 
thereon.  Pre-emption  laws,  securing  the  right  to  enter  land  by 
purchase  at  a  minimum  price  fixed  per  acre  had  been  enacted, 
and  donation  laws,  applicable  to  particular  States  had  been  passed, 
but  the  liberal  policy  of  offering  homesteads  had  not  been  ex- 
tended to  all  persons.  The  act  of  May  20th  of  that  year  **  is  the 
first  homestead  law  of  the  government,  "and  it  would  be  diflRcult 
perhaps,"  says  Dillon,  J.,  "to  point  to  any  enactment  of  the  Fed- 
eral Congress,  more  wise  in  conception,  just  in  policy,  and  bene- 
ficial in  results  than  this."^®  By  this  act  a  quantity  of  land,  not 
exceeding  160  acres,  is  given  to  any  person,  being  the  head  of  a 
family  and  possessing  the  requisite  qualifications,  on  condition  of 
settlement,  cultivation  and  continuous  occupation  as  a  home  by 
the  settler  for  a  period  of  five  years.'*^  During  this  period  he  is 
prevented  from  alienating  any  part  of  it,  or  from  maldng  any 
actual  change  of  residence,  or  from  abandoning  the  land  for  more 
than  SIX  months  at  a  time.  A  full  compliance  with  all  the  pro- 
visions of  the  act,  entitles  him  to  a  patent  at  the  expiration  of 
five  years. 

The  law  requires  the  land  "to  be  located  in  one  body,  in  con- 
formity to  the  legal  subdivisions  of  the  public  lands,  and  after 
the  same  shall  have  been  surveyed."  The  applicant  is  required 
to  file  with  the  Register  of  the  district  land  ofiice  his  application, 
designating  the  tract  desired  to  be  entered,  together  with  his 
affidavit  setting  forth  the  facts  which  bring  him  within  the  re- 
quirements of  the  law,'^  whereupon  the  Receiver  issues  homestead 

68 12  Stat,  at  Large,  392.  fore,    enaeted    that   thev   should   only 

69  Seymour  v.  Sanders,  3  Dill.  437.  be  entered  under  the  homestead  law, 

70  At  the  close  of  the  eivil  war,  the  and,  chan<iing  the  rule,  fixed  the  maxi- 
President,  by  proclamation  June  13,  mum  acreage  to  be  entered  by  a  per- 
1865,  ordered  the  reopening  of  the  son  at  80  acres.  This  law  continued 
United  States  district  land  offices  in  in  force  until  June  22,  1876,  when 
the  States  of  Louisiana,  Florida,  Ar-  it  was  repealed  and  all  of  the  lands 
kansas,  Mississippi,  and  Alabama.  in  the  five  Southern  States  were 
Congress,  .Tune  21,  1866,  directed  that  ordered  to  be  brought  into  market 
all  public  lands  in  those  States  should  by  proclamation  for  sale  at  public 
be  reserved  for  settlement  under  the  offering  to  be  followed  by  private  en- 
homestead  act  of  May  20,  1862.  The  try.  Title  to  upwards  of  12,000,000 
obtaining  of  these  lands  by  the  land-  acres  was  initiated  by  homestead  entry 
less  class  of  the  South  was  considered  under  the  law  of  1866. 

essential  to  their  future  welfare  and  71  A  fee  of  $10  must  also  be  paid 

that  of  the  Nation.     Congress  there-      at    this   time,    together    with    a    com- 


§  117]  INCEPTION   OF    TITLE.  121 

duplicate  receipts  for  each  entry,  one  of  which  is  delivered  to  the 
applicant,  and  the  other  returned  to  the  General  Land  OfficeJ^ 
No  certificate  is  issued  at  the  time  of  entry,  nor  until  the  expira- 
tion of  the  five  years,  except  in  case  of  a  sale  for  the  benefit  of 
infant  heirs,''^  or  where  full  payment  is  made  before  that  time 
as  provided  by  the  act.  In  case  of  a  sale  for  the  benefit  of  infant 
heirs,  a  certificate  issues  in  the  name  of  the  purchaser,  upon  evi- 
dence of  sale  made  in  obedience  to  a  decree  of  a  court  of  com- 
petent jurisdiction.  In  case  of  full  payment  the  party  is  required 
to  make  proof  of  settlement  and  cultivation  as  required  by  the 
pre-emption  laws,  upon  which,  and  the  surrender  of  the  home- 
stead duplicate,  a  new  and  original  entry  may  be  made  and  a 
receipt  will  issue  as  in  ordinary  cases,"^* 

§  117.  Rights  Acquired  Under  Homestead  Acts.  By  the  pre- 
liminary proceedings  already  noted,  an  inceptive  right  is  vested 
in  the  settler,  which  by  a  faithful  observance  of  the  law  in  regard 
to  settlement  and  cultivation  for  the  continuous  term  of  five  years, 
and  final  proof  and  payment  "^^  is  perfected  and  made  the  basis 
of  a  patent  or  complete  title.  By  the  4th  section  of  the  act  of 
1862,  land  acquired  in  this  manner  is  declared  to  be  not  liable 
for  debts  contracted  prior  to  the  issuing  of  the  patent. 

The  sale  of  a  homestead  claim  by  the  settler,  before  comple- 
tion of  title,  vests  no  title  or  equities  in  the  purchaser,  and  is  not 
recognized  by  law,'''®  and,  in  making  final  proof,  the  settler  is  by 
law  required  to  swear  that  no  part  of  the  land  has  been  alienated 

mission  of  one-half  of  one  per  cent.  bracing    an    area    of    74,302    square 

upon  the  cash  value  of  the  land  ap-  miles,  or  47,553,280  acres.     Kep.  Gen. 

plied  for,  based  on  $1.25  per  acre.  Land  Office,  1889. 

72  Cir.  Gen.  Land  Office,  March  1,  75  The  payment  here  mentioned  is  a 
1884.  commission  of  ^  of  one  per  cent,  paid 

73  §  2  of  act.  The  act  of  March  3,  on  the  issuance  of  the  certificate.  The 
1891,  and  subsequent  act  of  June  3,  fees  and  commissions,  however,  vary 
1896,  allow  commutation  to  be  made  somewhat.  See  Instructions  Gen. 
of  homestead  entries,  by  payment  to  Land  Office,  Oct.  30,  1862. 

be  made  after  fourteen  months  from  76  An  exception  to  this  rule  seems 

date  of  settlement.     See,  26  Stat,  at  to    have    been   made    by   the    Act    of 

Large,  1098;  29  Stat,  at  Large,  197.  June    15,    1880    (21    Stat,    at   Large, 

74  Cir.  Gen.  Land  Office,  Oct.  30,  §237).  This  act,  however,  is  retro- 
1862.  From  May  20,  1862,  the  date  spective  in  its  operation  and  appli- 
of  the  law,  to  June  30,  1889,  according  cable  only  to  peculiar  circumstances, 
to  a  very  modest  estimate,  the  num-  See,  Cir.  Gen.  Land  Office,  March  1, 
ber  of  patents  issued  was  297,208,  em-  1884. 


122  ABSTRACTS    OP    TITLE.  [§  117 

(.'Xfopl  lor   churrh,   ccmctory   or  school   purposes,   or  the   right  of 
way  of  a  railroad.''"'' 

In  the  event  tliat  a  homestead  claimant  dies  before  patent  issues, 
or  before  the  rifjht  to  demand  a  patent  has  accrued,  the  land  does 
not  become  part  of  his  estate.  Upon  his  death  all  his  rights  under 
the  homestead  entry  eease.  llis  heirs  thereupon  become  entitled 
to  a  patent,'''*  not  because  they  have  succeeded  to  his  equitable  in- 
terest, however,  l)ut  because  the  law  gives  them  preference  as  new 
homesteaders,  and  allows  them  the  benefit  of  the  residence  of 
their  ancestor  on  the  land.''^® 

§  118.  Desert  Land  Entries.  In  the  western-central  part  of 
the  United  States  there  is  a  vast  arid  region,  estimated  to  contain 
more  than  seven  hundred  millions  of  acres,  wherein  agricultui-e 
can  be  conducted  only  by  means  of  irrigation.®**  These  tracts 
have  received  the  name  "desert  lands,"  notwithstanding  they 
possess  remarkable  fertility  when  properly  irrigated,  and,  from 
the  experience  of  actual  settlers,  can  be  made  to  produce  larger 
crops  than  those  which  reward  the  labors  of  the  husbandman  in 
regions  subject  to  periodic  or  occasional  rainfall.®^ 

In  order  to  induce  settlement  on  this  class  of  lands  lying  west 
of  the  Missouri  river,  Congress,  in  1877,*^  passed  what  is  known 
as  the  "Desert  Land  Act,"  the  object  of  which  is  to  effect  a  rec- 
lamation of  lands  which  will  not,  without  artificial  irrigation, 
produce  any  agricultural  crop.  This  act  is  not  a  donation  law, 
however,  but  simply  a  variation  of  the  ordinary  cash  entry,  its 
beneficial  features  being  that  the  claimant  has  three  years  in  which 
to  introduce  water  and  pay  for  the  land.  A  duplicate  certificate 
is  issued  at  the  time  of  entry,  a  small  entry  fee  being  paid,  but 
final  certificate  of  purchase  is  not  given  until  proof  of  compliance 
with  the  terms  of  the  act  and  full  payment  has  been  made  for  the 
land,  which  is  usually  three  years  afterward. 

77  Rev.  Stat.  U.  S.  §  2288.  81  Sec,  Report  on  tlio  Lands  of  the 

78  Rev.  Stat.  U.  S.  S  2291.  Arid   Region,   by   Powell,   1878;    Pre- 

79  (J  jerstadengen  v.  Van  Duzen,  7  liniinary  Report  of  Public  Land  Coni- 
X.  Dak.  612.  mission,  1880. 

80  These  lands  lie  in  Nevada,  New  82  Act  of  March  3,  1877.  This  act 
Mexico,  Arizona,  Colorado,  Wyoming,  api)lies  only  to  California,  Oregon, 
Southern  California,  Montana,  East-  Nevada,  Washington,  Idaho,  Mon- 
ern  Oregon  and  Washington,  and  a  tana,  Utah,  Wyoming,  Arizona,  New 
portion   of   the   Western   part   of   the  Mexico  and  Dakota. 

Dakotas.  They  are  also  found  in 
small  areas  in  other  parts  of  the  West- 
ern States. 


§  119]  INCEPTION   OF    TITLE.  123 

§  119.  Timber  Culture  Entries.  To  promote  the  growth  of 
timber  on  the  treeless  prairies  of  the  "West,  Congress  further  en- 
acted a  law/ by  which  any  person  entitled  to  make  a  pre-emption 
or  homestead  entry  might  secure  160  acres  of  public  land  by 
planting,  protecting  and  keeping  in  a  healthy  growing  condition 
thereon,  for  eight  years,  ten  acres  of  timber.  Lands  subject  to 
entry  under  this  act  must  be  composed  exclusively  of  prairie  lands, 
or  other  lands  devoid  of  timber.  At  the  expiration  of  eight  years 
final  proof  is  made  and  patent  issues  as  in  other  cases.  Residence 
or  actual  settlement  is  not  necessary,  nor  will  an  entry  of  this 
character  preclude  a  simultaneous  homestead  or  pre-emption  entry, 
hence  "tree  claims"  have  been  made  on  a  large  portion  of  the 
western  lands  and  will  form  the  initial  stage  of  title  to  much 
valuable  property. 

If  the  owner  of  a  timber  claim  dies  before  he  has  complied  with 
all  the  conditions  necessary  to  obtain  a  patent,  his  heirs  may  com- 
plete the  remaining  conditions,  and  upon  obtaining  a  patent  they 
take  the  land  in  equal  shares  as  direct  grantees  of  the  government 
and  not  by  inheritance.^' 

But,  like  the  pre-emption  laws,  it  was  found  that  the  timber- 
culture  laws  were  subjected  to  much  abuse  and  that  many  fraudu- 
lent entries  were  made,  and  on  March  3,  1891,  they  were  formally 
repealed.**  All  valid  rights,  however,  acquired  thereunder  were 
not  affected  by  the  repeal  and  all  claims  initiated  before  the  act 
might  be  perfected  under  the  old  law. 

§  120.  Location  by  Military  Warrants.  The  practice  of  grant- 
ing bounty  land  to  officers  and  soldiers  who  have  been  engaged 
in  the  military  service  of  the  United  States,  as  a  public  reward 
for  devotion  and  patriotism,  dates  back  to  the  period  of  the  Revo- 
lution, and  has  formed  the  subject  of  a  number  of  Congressional 
enactments  since  that  time.*^  The  warrants  or  certificates  issued 
in  pursuance  of  these  acts  may  be  located  at  any  land  office  in  the 
United  States  and  must  be  made  on,  lands  subject  to  private  entry, 
according  to  the  legal  subdivisions  and  in  one  body,  the  selection 
always  to  be  in  as  compact  a  form  as  possible.  The  law  expressly 
forbids  the  location  of  a  warrant  upon  any  lands  to  which  there 
shall  be  a  pre-emption  right,  or  upon  which  there  shall  be  an 
actual   settlement  or  cultivation,   or  upon   any  lands  which   arc 

83  Cooper  v.  Wilder,  111  Cal.  191.  civil  war.    The  only  privileges  granted 

84  26  Stat,  at  Large,  1095.  for    such    service,   in   connection   with 
86  No  land  bounties  were  given   by       the  public  lands,  were  time  allowances 

Congress   for   military   service   in   the       on  homestead  entries. 


124  ABSTRACTS   OF   TITLE.  [§  120 

reserved  or  withdrawn  from  market  for  any  purpose  whatever.*® 
When  located  by  the  warrantee  in  person  they  are  available  upon 
any  tracts  of  land  which  may  be  entered  under  the  general  pre- 
emption laws,  whether  such  land  has  or  has  not  been  offered  at 
public  sale.^'  By  act  of  Congress  of  March  22,  1852,  certificates 
of  location  of  military  land  warrants  were  made  assignable,  and 
the  interest  acquired  by  valid  location  was  made  to  pass  by  deed 
or  instrument  of  writing,  in  the  form  and  subject  to  the  regula- 
tions prescribed  by  the  General  Land  Office,  the  assignee  becom- 
ing fully  vested  with  all  the  rights  and  property  of  the  original 
owner  or  warrantee.** 

The  entry  is  made  by  application  to  the  Register  alone,  who 
issues  duplicate  certificates  of  purchase,  one  of  which  is  delivered 
to  the  purchaser  and  the  other  transmitted  to  the  General  Land 
Office  as  in  other  classes  of  entries.  If  the  certificate  has  been 
assigned,  and  such  assignment  has  been  received  before  the  issue 
of  the  patent,  the  same  will  be  issued  in  the  name  of  the  assignee. 
Assignments  and  locations,  as  well  as  deeds  of  land  so  located 
prior  to  the  issue  of  the  patent,  if  made  before  March  22,  1852, 
have  been  held  invalid.** 

§121.  Land  Scrip.  In  1784.  the  State  of  Virjxiiiia  ceded  to 
the  United  States  the  largest  and  most  valuable  body  of  land  that 
ever  belonged  to  the  public  domain  of  any  State  in  the  world. 
But  previous  to  the  cession  the  State  had  promised  to  give  certain 
portions  of  it  to  the  soldiers  and  sailors  who  had  served  during 
the  Revolutionary  War  in  its  armies  and  navies.  The  govern- 
ment took  the  land  charged  with  this  obligation  to  satisfy  the 
claims  of  Virginia's  defenders,  and  assumed  all  unsatisfied  out- 
standing military  land  w-arrants  of  the  State,  issued  by  proper 
authorities,  giving  in  exchange  therefor  the  land  "scrip"  of  the 
United  States.*"  This  scrip  is  receivable  in  payment  of  any 
lands  owned  by  the  United  States,  subject  to  sale  at  private  entry. 

There  has  also  been  issued  under  acts  of  Congress,*^  and  in  pur- 
suance of  treaties  with  Indian  tribes,  a  species  of  location  cer- 
tificates known  as  Indian  or  Half-breed  scrip.     It  is  issued  to  the 

86  Act  Feb.  11,  1847;  Act  Sept.  28,  to  Juno  30,  188.?,  aniouuted  to  61,- 
1850.  064,150  acres.     Eep.  Pub.  Land  Com- 

87  Instructions    Gen.     Land     OflBee,       mission,  1883. 

April  1,  1848;  do.  March  31,  1851.  89  Nichols  v.  Nichols,  3  Pin.  (Wis.) 

88  Waters  v.  Busch,  42  Iowa,  255;  174;  Stephenson  v.  Wilson,  37  Wis. 
Bell   V.   Hearne,   19   How.   260.     The      482. 

grants    for    military   and    naval    land  90  6    Opinions    Atty.    Gen.    243 ;    9 

bounties  from  the  origin  of  these  laws       do.  156;  Act  Aug.  31,  1852. 


§  121]  INCEPTION    OF    TITLE.  125 

Half-breed  and  can  be  located  only  in  his  name,  and,  unlike  the 
Virginia  scrip,  cannot  be  treated  as  money,  but  must  be  located 
acre  for  acre.  This  scrip  is  not  assignable  and  transfers  of  same 
are  held  void.  Though  originally  confined  to  reservations,  the 
sphere  of  location  has  by  statute  been  enlarged  so  as  to  comprise 
any  other  unoccupied  lands  subject  to  pre-emption  or  private 
sale.  No  receipt  is  issued  to  the  locator,  except  in  unavoidable 
cases,  as  where  there  is  a  small  excess  in  the  area  of  location  over 
the  scrip,  which  must  be  paid  for  and  receipt  issued  as  in  bounty 
land  warrant  cases.  But  no  certificate  of  purchase  is  issued,  as  in 
case  of  money  purchases,  the  scrip  and  application,  instead  of 
certificates  of  purchase,  being  the  instruments  of  title  which  are 
returned  to  the  General  Land  Office  in  this  class  of  business.^  A 
certificate  by  the  commissioner  of  the  General  Land  Office  show- 
ing the  location  of  the  scrip,  and  that  such  location  was  made  by 
the  party  authorized  to  do  so,  is  competent  evidence  to  show  title 
in  the  location.  A  copy  of  the  scrip  is  not  essential  to  prove  title 
from  the  government  whenever  this  becomes  necessary .^^ 

Private  land  scrip  is  issued  on  confirmation  of  the  claims  of 
individuals,  and  is  intended  as  a  compensation  to  the  donee  for 
the  loss  of  valuable  estates  or  interests  in  lands.  It  may  be  as- 
signed, and  when  assigned  may  be  located  in  the  name  of  the  as- 
signee. It  would  appear  that  entries  made  with  this  scrip  are 
not  patentable,  no  provision  being  made  therefor,  but  it  seems 
that  in  this  case  a  patent  is  not  absolutely  necessary  for  the  full 
protection  of  claimants,  inasmuch  as  a  certificate  of  entry  will 
be  full  evidence  of  a  complete  relinquishment  by  the  United 
States  of  all  its  interests  in  the  land  located.^* 

The  most  important  of  this  peculiar  class  of  paper  is  that 
known  as  Agricultural  College  scrip.  It  is  issued  in  pursuance 
of  an  act  of  Congress,  passed  July  2,  1862,  to  donate  a  portion 
of  the  public  land  to  the  several  States  and  Territories  which  may 
provide  colleges  for  the  benefit  of  agriculture  and  the  mechanic 
arts.  The  amount  of  land  donated  by  this  act  was  a  quantity 
equal  to  30,000  acres  for  each  senator  and  representative  in  Con- 
gress by  the  apportionment  under  the  census  of  1860.  The  quan- 
tity of  land  to  which  each  State  was  entitled  was  to  be  selected 

91  10  Stat,  at  Large,  304.  reconcile  this  procedure  with  the  oft 

92  Instructions  Gen.  Land  Office,  repeated  decisions  of  courts,  respect- 
Feb.  22,  1864;  do.  May  13,  1865.  ing  the  necessity  of  a  patent  to  prove 

93  Wilcox  V.  Jackson,  109  111.  261.  title    out    of    the    government,    in    ac- 

94  Opinion  and  instructions  Secy,  of  tions  of  ejectment  or  other  proceed- 
Int.,  Aug.  4,  1875.     It  is  difficult  to  ings  at  law  to  try  disputed  titles. 


126  ABSTRACTS   OP    TITLE.  [§  121 

j)i-imarily  from  the  public  lands,  within  the  limits  of  such  State, 
that  were  subject  to  sale  at  ]>rivate  entry  at  the  minimum  price, 
and  in  ease  of  a  deficiency  of  such  lands  the  Secretary  of  the  In- 
terior was  instructed  to  issue  land  scrip  to  the  amount  in  acres 
for  such  deficiency  of  its  distributive  share.  This  scrip  was  to  be 
sold  by  the  States  and  the  proceeds  applied  to  the  uses  prescribed 
by  the  act.  The  State  is  prohibited  from  locating  the  scrip  within 
the  limits  of  any  other  State,  but  its  assignees  may  locate  same 
upon  any  of  the  unappropriated  lands  of  the  United  States  sub- 
ject to  sale  at  private  entry,  or  in  payment  for  pre-emptions,^^ 
and  in  commuting  homestead  entries.®^  The  manner  of  proceed- 
ing to  acquire  title  with  this  class  of  certificates  is  the  same  as  in 
cash  and  warrant  cases. 

§122.  Swamp  Land  Grants.  By  act  of  :\Iarch  2.  184!),  ('on- 
gress  made  a  grant  to  the  State  of  Louisiana  of  certain  swamp 
and  overflowed  lands,  and  by  act  of  Sept.  28,  1850,®'  made  a 
similar  concession  to  the  State  of  Arkansas  "and  each  of  the 
other  States  of  the  Union  in  which  such  swamp  and  overflowed 
lands  may  be  situated."  The  first  act  applied  only  to  the  State 
of  Louisiana,  and  vested  the  fee  in  said  lands  upon  the  approval 
of  the  selections  by  the  Secretary  of  the  Interior.  The  general 
law  of  1850  provides  that  the  fee  shall  vest  in  the  State  upon  the 
issuing  of  a  patent.  The  method  of  selection  being  left  optional 
with  the  States,  Michigan  and  Wisconsin  adopted  the  field  notes 
of  survey  as  the  basis  of  their  acceptance,  while  the  others  agreed 
to  ascertain  the  lands  by  examination  in  the  field.**  The  grant 
comprised  all  lands  which  were  wet  and  unfit  for  cultivation,  and 
included  also  all  lands  which,  though  dry  part  of  the  year,  were 
subject  to  inundation  at  the  planting,  growing  or  harvesting  sea- 
son, so  as  to  destroy  the  crop.  These  lands,  for  the  most  part, 
have  since,  by  drainage  and  cultivation,  become  valuable  for  agri- 
cultural purposes,  and  the  title  to  many  fine  farms  in  the  Western 
States  is  derived  through  the  swamp  land  gi-ants.®' 

Though  the  act  provided  for  tlie  issuing  of  a  patent  to  vest  the 
i'rr,  if  was  itself  a  present  grant  wanting  nothing  but  a  definition 
of  liouiidarics  to  make  it  perfect,  the  patent  being  merely'  in  coji- 

95  Instructions     Gen.     Laud     Office,  Ml  Lester's  L.  L.,  542. 

July  22,  1870.  99  Since   the  passage  of  these  acts 

96  Instructions  Gen.  Land  Office,  and  prior  to  June  30,  1889,  there  has 
f'eb'y  8,  1872.  See  also  15  Stat,  at  beon  patented  to  fifteen  States  lands 
Large,  227.  aggregating    57,099,972    acres.      Rep. 

97  9  Stat,  at  Large,  519.  Gen.  Land  Office,  1889. 


§  123]  INCEPTION    OF    TITLE.  127 

firmation  of  the  equitable  title  already  vested,^  yet,  as  the  fee  re- 
mained in  the  government  until  the  issuance  of  the  patent,  the 
State  would  have  no  power  to  convey  a  legal  title  or  dispose  of 
the  land  prior  to  that  event.^  The  complete  abstract,  therefore, 
should  recite  the  original  grant,  showing  the  acceptance  by  the 
State,  and  any  other  necessary  feature,  and  finally  the  patent 
from  the  government,  as  the  foundation  of  title. 

It  will  be  observed  that  the  provisions  of  this  act  extend  to, 
and  their  benefits  are  conferred  upon,  only  "each  of  the  other 
States  of  the  Union,"  and  it  has  always  been  held  by  the  General 
Land  Office  that  the  grant  extended  only  to  States  in  existence 
at  the  date  of  the  act,  and  that  as  new  States  were  admitted  addi- 
tional legislation  was  needed  to  confer  the  benefits  of  the  swamp 
grant  upon  them.'  In  this  construction  Congress  seems  to  have 
concurred,  for  in  1860  we  find  a  special  statute  extending  the 
swamp  grant  to  the  States  of  Oregon  and  Minnesota,  which  States 
had  been  admitted  subsequent  to  the  passage  of  the  grant  of  1850. 
This  is  undoubtedly  correct,  as  all  grants  of  the  public  domain  are 
in  the  nature  of  benefits  derived  through  the  original  granting 
acts,  designating  the  character  and  extent  of  the  grants  and  the 
manner  in  which  they  are  to  be  made  effective  and  secure  to  the 
grantee.  Such  benefits  are  usually  bestowed  not  by  general,  but 
by  special  legislation. 

§123.  School  Lands.  It  has  always  been  a  cherished  policy 
of  the  government  to  set  apart  and  appropriate  a  portion  of  every 
township  for  the  advancement  of  education  in  the  support  of  com- 
mon schools.  Formerly,  one  section  only  was  devoted  to  this  most 
laudable  purpose,  but  in  the  States  admitted  during  later  years 
two  sections  have  been  reserved,*  usually  sections  16  and  36.    The 

19  Opinions  Atty.  Gen.  253;   Sterl-  school  purposes.     These  grants  of  land 

ing  V,  Jackson,  69  Mich.  488.  were   made   from   the   public   domain, 

2  Parsons  v.  Comm'rs  S.  &  U.  and  to  States  only  which  were  known 
Lands   9  Wis.  236.  as  public-land  States.     Twelve  States, 

3  See  Rulings  Commissioner  Gen.  from  March  3,  1803,  known  as  public- 
Land  Office,  Jan.  19,  1874,  and  May  land  States,  received  the  allowance  of 
2    1871.  the    sixteenth    section    to   August    14, 

4  To  each  organized  Territory,  after  1848. 

1803,  was  and  now  is  reserved  the  six-  In  the  act  for  the  organization  of 

teenth    section    for    school    purposes,  the   Territory  of  Oregon,   August  14, 

which     reservation     is     carried     into  1848,  there  was  inserted  an  additional 

grant  and  confirmation  by  the  terms  grant     for     school    purposes     of     the 

of  the  act  of  admission  of  the  Terri-  thirty-sixth  section  in  each   township, 

tory    or    State    into    the    Union;    the  with    indemnity    for    all    public-land 

State    then    becoming    a    trustee    for  States  thereafter  to  be  admitted,  mak- 


128 


ABSTRACTS   OF    TITLE. 


[§123 


practice  of  setting  apart  section  16  is  traceable  to  the  ordinance 
of  1785,  being  the  first  enactment  for  the  disposal  by  sale  of  lauds 
in  the  Western  territory,  and  became  a  fundamental  principle  by 
the  ordinance  of  1787,  which  settled  terms  of  compact  between  the 
people  and  States  of  the  Northwest  Territory  and  the  original 
States.  One  of  the  articles  affirming  that  "religion,  morality  and 
knowledge  being  necessary  for  good  government  and  happiness  of 
mankind,"  declared  that  "schools  and  the  means  of  education 
should  forever  be  encouraged."  This  principle  was  extended,  tirst 
by  congressional  enactment,^  and  afterward  in  1802,  by  compact 
between  the  United  States  and  Georgia,  to  the  Southwest  Territory. 
The  constancy  with  which  the  government  lias  ever  adhered  to 
this  policy  in  the  various  compacts  with  the  people  of  the  newly 
formed  States,  and  the  care  which  Congress  has  manifested  to 
prevent  the  accumulation  of  prior  obligations  which  might  inter- 
rupt it,  fully  display  their  estimation  of  its  importance  and  value.^ 
The  reservation  of  these  sections,  in  words  of  present  grant,  is  made 
a  part  of  the  organic  act  on  the  admission  of  the  State  into  the 
Union  and  passes  to  the  State  the  title  to  the  land  without  further 
legislation.  As  the  government  extends  its  surveys,  so  that  the 
location  of  the  section  can  be  ascertained,  the  title  in  the  State 
becomes  perfect  and  complete.'  Where  sections  16  or  36  are  in 
whole  or  in  part  included  in  private  claims,  held  by  titles  legally 
confirmed  or  decided  to  be  valid,  the  State  may  select  their  equiva- 
lent in  other  unreserved  lands. 


ing  the  reservation  for  school  pur- 
poses the  sixteenth  and  thirty-sixth 
sections,  or  1,280  acres  in  each  town- 
ship of  six  miles  square  reserved  in 
public-land  States  and  Territories,  and 
confirmed  by  grant  in  terms  in  the  act 
of  admission  of  such  State  or  Terri- 
tory into  the  Union. 
6  1  Stat,  at  Large,  550. 

6  See  Cooper  v.  Roberts,  18  How. 
(U.  S.)  173,  for  an  elaborate  review 
of  this  subject. 

7  Cooper  v.  Roberts,  18  How.  (U. 
S.)  173;  Bucher  v.  Wetherby,  5  Otto 
(U.  S.),  517.  There  has  been  granted 
and  reserved  for  educational  purposes, 
since  the  organization  of  the  govern- 
ment and  prior  to  June  30,  1883,  a 
grand  total  of  78,889,839  acres.  Of 
this  amount  67,893,919  acres  have  been 
donated  for  the  support  and  mainte- 


nance of  the  public  or  common  schools, 
the  balance  has  been  variously  given 
for  agricultural  and  mechanical  col- 
leges, seminaries  or  universities. 

In  the  legislation  relating  to  the 
admission  of  the  public-land  States 
into  the  Union,  from  the  admission  of 
Ohio  in  1802,  grants  of  two  town- 
ships of  public  lands,  viz.,  46,080  acred 
each,  for  university  purposes  are 
enumerated.  Ohio,  Florida,  Wiscon- 
sin, and  Minnesota  are  the  exceptions, 
each  having  more  than  two  townships 
in  area.  These  reservations  in  each 
case  require  a  special  act.  AU  school, 
university  or  agricultural  college  lands 
granted  arc  sold  by  the  legislatures  of 
the  several  States  or  leased,  and  the 
proceeds  of  sale  or  lease  applied  to 
education. 


§  125]  INCEPTION   OF    TITLE.  129 

§124.  Internal  Improvement  Grants.  In  addition  to  the 
grants  hereinbefore  described,  Congress,  from  time  to  time,  has 
made  large  grants  of  the  public  domain  to  the  different  States,  to 
aid  in  the  development  of  the  country  by  the  building  of  railroads, 
canals,  and  other  internal  improvements.  These  grants,  though 
local  in  their  nature,  are  all  governed  by  the  same  general  prin- 
ciples. The  acts,  as  a  rule,  convey  in  words  of  present  grant  which 
vests  a  fee  simple  title  in  the  States  to  which  the  lands  are  given,^ 
and  where,  as  in  case  of  an  unlocated  railroad,  no  specific  tracts 
are  designated,  they  have  been  held  to  constitute  a  conditional 
grant  in  pra'senU  in  the  nature  of  a  "float"  which  does  not  attach 
to  any  particular  parcel  of  the  public  lands  until  the  necessary 
determinative  lines  have  been  fixed  upon  the  face  of  the  earth,^ 
but  upon  such  definite  location  the  title  to  each  particular  parcel 
will  be  as  complete  as  if  it  had  been  granted  by  name,  number  or 
description,^''  relating  back  to  the  date  of  the  grant. ^^  The  same 
general  rules  will  also  apply  to  special  grants  for  State  improve- 
ments. 

All  public  grants  are  to  be  construed  most  strongly  against  the 
grantee,  and  this  is  specially  true  of  legislative  grants.  In  con- 
struing a  congressional  grant,  it  should  always  be  borne  in  mind 
that  the  act  by  which  it  is  made  is  a  law  as  well  as  a  conveyance, 
and  that  such  efi:ect  must  be  given  to  it  as  will  carry  out  the  intent 
of  Congress.  This  intent  cannot  be  defeated  by  applying  to  the 
grant  the  rules  of  the  common  law,  which  are  properly  applicable 
only  to  transfers  between  private  parties,  and  to  the  validity  of 
which  there  must  exist  a  present  power  of  identification  of  the  land 
conveyed.  Where  no  such  power  exists,  instruments  with  words 
of  present  grant,  are  operative,  if  at  all,  only  as  contracts  to  con- 
vey, but  in  the  grants  under  consideration,  as  in  all  other  cases 
of  governmental  conveyances,  the  rules  of  the  common  law  must 
yield  to  the  legislative  will.^^ 

§  125.  Land  Grants  to  Railroads.  From  the  period  of  the 
inauguration  of  the  system  of  land  grants  in  aid  of  internal  im- 
provements by  private  corporations  until  the  year  1862,  it  was  the 
invariable  practice  to  make  the  grant  to  the  State,  which,  in  this 

8  U.  S.  V.  Perchman,  7  Peters,  51 ;  H  Swann  v.  Lindsey,  70  Ala.  507. 
U.    S.    V.    Brooks,    10    Howard,    442 ;  12  Schulenberg     v.     Harriman,     21 
Godfrey  v.  Bradley,  2  McLean,  412.  Wall.   (U.  S.)   60;  R.  R.  Co.  v.  R.  R. 

9  8  Opinions  Atty.  Gen.  244.  Co.,  97  U.  S.  491. 

10  9  Opinions  Atty.  Gen.  41;   R.  R. 
Co.  V.  United  States,  92  U.  S.  733. 

Warvelle  Abstracts — 9 


130  ABSTRACTS   OF   TITLE.  [§  125 

instance,  acted  as  a  trustee  or  transfer  agent,  conveying  to  the 
corporation  the  fee  of  the  laud  after  pert'ormauec  of  conditions." 
The  charier  of  the  Union  racific  R.  K.  olfected  a  complete  change 
iu  this  respect.  Here  the  grant  was  made  direct  to  the  corporation, 
all  intermediaries  being  avoided,  and  the  precedent  thus  set  has 
been  followed  in  a  large  number  of  grants  made  since  that  time.^* 
The  act  of  Congress  granting  the  lands  is  the  inceptive  measure 
of  all  titles  initiated  in  this  manner,  and  forms  the  lirst  link  in  the 
chain.  The  acts  are  usually  couched  in  words  of  present  grant,  as 
"that  there  be  and  is  hereby  granted,"  and  when  so  worded  they 
constitute  a  conveyance  that  can  only  be  defeated  by  failure  to 
perform  the  conditions  annexed  to  the  grant.  The  general  right 
to  the  land,  subject  to  the  exceptions  contained  in  the  act,  vests 
at  the  date  of  the  passage  of  the  law,  and,  as  in  the  case  of  other 
unlocated  tracts,  attaches  to  the  specific  lands  at  the  time  of  filing 
the  plat  in  the  General  Land  Office.  After  this  has  been 
accomplished  the  title  of  the  corporation  becomes  fully  vested 
and  complete.^^ 

§  126.  Public  Highways.  By  act  of  Congress,  in  the  year 
1866,^^  the  right  of  w^ay  was  granted  for  the  construction  of  high- 
ways over  public  lands  not  reserved  for  public  use,  and  in  nearly 
all  of  the  States  containing  public  land  a  special  enactment  de- 
ls March  2,  1833,  Congress  au-  to  be  fixed  by  Congress.  This  act  ex- 
thorized  the  State  of  Illinois  to  di-  tended  like  terms  and  conditions  to 
vert  the  canal  grant  of  March  2,  1827,  the  States  of  Alabama  and  Mississippi 
and  to  construct  a  raUroad  with  the  in  aid  of  the  Mobile  and  Ohio  road 
proceeds  of  said  lands.  This  was  the  which  was  to  connect  with  the  llli- 
first  Congressional  enactment  provid-  nois  Central  and  branches — all  of 
ing  for  a  land  grant  in  aid  of  a  rail-  which  roads  are  now  established, 
road,  but  was  not  utilized  by  the  l*It  is  estimated  that  if  the  lands 
gtate.  embraced  in  limits  of  grants  to  rail- 
The  act  of  September  20,  1850,  roads  were  all  available,  and,  that  the 
was  the  first  railroad  act  of  real  ini-  corporations,  State  and  National,  built 
portance,  and  initiated  the  system  of  their  roads,  and  complied  with  the 
grants  of  land  for  railroads  by  Con-  laws,  it  would  require  215,000,000  of 
gress  which  prevailed  until  after  July  acres  of  the  public  domain  to  satisfy 
1,  1862.  This  grant  gave  the  State  of  the  requirements  of  the  various  laws. 
Illinois  alternate  sections  of  land  Actual  selections,  forfeitures,  etc., 
(even-numbered)  for  six  sections  in  have  greatly  reduced  this  amount, 
width  on  either  side  of  the  road  and  See  Kep.  Public  Land  Commission, 
branches,  being  a  grant  of  specific  sec-  1883. 

tions.     The  road  was  to  be  a  public  16  South  Pac.  R.  R.  Co.  v.  Dull,  22 

highway,  to  be  used  by  the  Govern-  Fed.  Rep.  489. 

ment  free  of  toU  or  other  charges,  and  16  Sec.  2477  Rev.  Stat.  U.  S. 
the  mails  were  to  be  carried  at  prices 


§  126a] 


INCEPTION  OF   TITLE. 


131 


clares  that  all  section  lines,  as  far  as  practicable,  shall  be  and 
remain  public  ways.  The  effect  of  these  laws,  taken  together,  is 
to  locate  and  dedicate,  by  express  public  grant,  a  strip  of  land 
along  each  section  line  for  highway  purposes,  and  subsequent 
settlers  and  purchasers  acquire  title  subject  to  the  public  use  in 
this  particular.^''  Where  the  land  had  passed  into  private  owner- 
ship prior  to  the  enactment  of  these  laws  their  effect  would  be 
nothing  more  than  an  assertion  of  the  right  of  eminent  domain, 
and  should  the  strip  be  actually  taken  the  rule  of  compensation 
would  undoubtedly  apply. 

§126a.  Private  Land  Claims.  Embraced  in  the  accessions 
which  at  different  times  have  been  made  to  the  National  territory, 
are  numerous  individual  foreign  titles  having  their  origin  under 
the  governments  preceding  the  United  States  in  sovereignty.  To 
these  the  name  "Private  Land  Claims"  has  been  assigned.  They 
are  usually  founded  on  written  grants  of  some  kind,  yet  they 
also  exist  even  as  nascent  claims  resting  upon  actual  settlement 
before    the    change    of    government. ^^      These    titles    have    been 


17  Wells  V.  Pennington  County,  2 
S.  Dak.   1. 

18  Turning  to  the  national  map  it 
will  be  seen  that  these  private  claims 
or  grants,  marking  the  progress  of 
early  explorations  and  settlements  on 
this  continent,  begin  on  the  northern 
shores  of  the  Michigan  lower  penin- 
sula, come  down  to  the  old  French  set- 
tlement at  and  near  Detroit,  pass  over 
to  Green  Bay  and  Prairie  du  Chien  in 
Wisconsin,  enter  into  Indiana  at  the 
old  Vincennes  post,  do'.vn  the  eastern 
side  of  the  Mississippi,  and  in  Illinois 
reach  Peoria,  Prairie  du  Roeher,  and 
the  Kaskaskias,  there  resting  on  an- 
cient British  and  French  grants,  and 
all  within  the  limits  of  the  United 
States  according  to  the  treaty  of  limits 
in  1783.  Thence  such  ancient  claims 
are  found  in  descending  the  Missis- 
sippi under  other  forms  of  grant  and 
granting  officers,  to  the  Gulf  of  Mex- 
ico, extending  into  the  southern  por- 
tions of  Mississippi  and  Alabama,  and 
scattering  all  over  both  East  and  West 
Florida,  crossing  the  Mississippi  and 
following  the  shores  of  the  Gulf,  they 


are  found  thickly  scattered  over  Lou- 
isiana, existing  in  Arkansas,  and  in 
great  numbers  in  Missouri. 

In  those  localities  south  of  the 
thirty-first  degree,  east  of  the  Mis- 
sissippi, to  the  Perdido,  and  those 
west  of  the  Mississippi  to  the  present 
State  of  Missouri,  inclusive,  the  claims 
are  founded  on  Spanish  and  French 
titles,  under  treaty  of  1803  and  an- 
cient settlements;  those  east  of  the 
Perdido,  in  the  Floridas,  upon  Spanish 
titles  under  the  treaty  of  1819,  and 
under  old  settlements. 

In  New  Mexico,  Colorado,  Arizona, 
and  California,  as  we  advance  west- 
ward, there  exist  ancient  Spanish 
titles,  municipal  and  rural,  claimed 
under  the  treaty  of  1848  with  Mexico, 
and  what  is  known  as  the  Gadsden 
purchase  of  December  30,  1853.  These 
claims  are  for  irregular  tracts,  illy 
defined,  bounded  by  streams  or  marked 
by  headlands,  or  natural  objects  in 
many  cases  since  removed.  They 
were  made  for  agricultural,  mining, 
stock-raising,  or  colonization,  in  all 
sizes  from  a  village  lot  to  a  million- 


132  ABSTRACTS   OF    TITLE.  [§  126a 

scrupulously  rcspet-tiHl  by  the  United  States  and  every  effort  has 
been  made  to  secure  to  individuals  all  their  rights  which  origi- 
nated under  former  governments.  The  principle  has  been  rigor- 
ously maintained  that  though  tlie  sovereignty  may  change  the 
rights  of  private  property'  remain  unaffected,**  and  in  this  re- 
spect no  nation  has  shown  a  higher  sense  of  justice  or  a  more  lib- 
eral spirit.  Frequently  these  claims  are  confirmed  by  the  United 
States  and  thereupon  patents  of  confirmation  issue,^"  but  there 
are  numerous  holdings,  particularly  in  States  east  of  the  Mis- 
sissippi, which  rest  entirely  on  the  old  French  and  Spanish  grants. 

§127.  Who  May  Acquire  Title.  The  policy  of  the  general 
government  in  relation  to  the  sale  of  the  public  lands  has  ever 
been  most  liberal,  yet  a  few  restrictions  have  been  imposed  in 
certain  cases  which  it  may  be  well  to  notice.  The  general  land 
sj'stem  makes  little  or  no  discrimination,  but  to  this  has  been 
superadded  a  specific  new  fact :  the  sale  or  disposal  of  certain 
lands,  in  certain  limited  quantities,  at  a  reduced  price  or  on  cer- 
tain specific  conditions,  for  personal  use  and  for  actual  settlement 
and  cultivation  only,  under  a  series  of  acts  known  as  pre-emp- 
tion, graduation,  homestead  acts,  etc.  The  benefits  of  these  acts 
are  designed  for  actual  settlers  and  exclude  all  persons  not  siii 
juris,  such  as  married  women,  minors,  and  others  who  are  legally 
incapable  of  contracting;  meaning  of  course  married  women  and 
minors  not  unemancipated,  and  constituting  members  of  the  fam- 
ily of  the  husband  or  father.^*  The  general  law,  in  so  far  as 
regards  the  United  States,  undoubted!}^  enables  aliens  to  purchase 
the  public  lands  for  cash  and  at  the  ordinary  price,  subject  only 
to  such  limitation  as  the  particular  States  may  enact.*^  The 
benefits  of  the  special  laws  above  referred  to,  however,  apply  only 
to  persons  who  are  citizens  of  the  United  States,  or  such  as  have 
filed  their  declarations  to  become  citizens,  as  required  by  the 
naturalization  laws.^' 

§  128.  Inceptive  Measures  in  the  Abstract.  The  foregoing 
brief  and  fragmentary  review  of  the  inceptive  stages  of  title, 
but  faintly  expresses  the  vastness  of  our  public  land  system  and 

acre  tract.     The  records  kept  by  the  19  United    States    v.    Percheman,    7 

granting    authorities    of    Spain    and  Pet.    (U.   S.)    51;    Soulard  v.  United 

Mexico  have  been  a  serious  hindrance  States,  4  Pet.  (U.  S.)  511. 

in   some  cases  toward  a  satisfactory  20  See  §132  "Confirmations,"  post. 

solution,  being  frequently  of  doubtful  21  5  Stat,  at  Large,  458. 

meaning.      See,   Report   Public    Land  22 10  Stat,  at  Large,  649. 

Commission,  1883.  23  7  Opinions  Att  'y  Gen.  351. 


§  128]  INCEPTION   OF    TITLE.  133 

conveys  no  adequate  idea  of  its  many  intricate  details  produced 
by  an  almost  innumerable  number  of  acts  of  local  or  temporary 
application,  together  with  their  attendant  rulings,  instructions 
and  decisions  by  the  Interior  Department,  and  adjudicated  cases.''* 
A  full  and  accurate  knowledge  of  the  United  States  land  system 
is  of  the  utmost  importance  to  both  examiner  and  counsel,  and 
though  it  is  not  usual  or  necessary  to  incorporate  any  consider- 
able portion  of  the  inceptive  measures  in  the  abstract,  yet  when 
it  is  remembered  that  the  validity  of  title  to  each  and  every  tract 
carved  from  the  public  domain,  depends  upon  the  accuracy  with 
which  the  first  details  of  transfer  from  the  government  to  its 
grantee  were  executed,  the  importance  of  exercising  critical  care 
at  this  stage  of  the  abstract  will  be  apparent.^^ 

A  brief  note  of  the  entry  should  always  form  the  initial  state- 
ment of  the  abstract,  or  when  originating  in  grant,  a  correspond- 
ing statement  to  that  effect,  the  degree  of  fullness  of  narration 
being  optional  with  the  examiner.  The  various  steps  under  the 
pre-emption  laws  prior  to  entry  are  unimportant,  and  shed  no 
light  on  the  title  after  the  certificate  has  issued.  But  with  home- 
stead entries  it  is  different.  Here  the  certificate  does  not  issue 
until  five  years  after  entry  and  during  this  period  eventful  changes 
may  occur.  In  case  the  interest  should  be  sold  for  the  benefit 
of  infant  heirs,  a  certificate  issues  to  the  purchaser,  and  the  ab- 
stract should  show  substantially  all  the  proceedings  from  entry 
to  issue  of  certificate.  All  the  needed  data  can  be  procured  by 
obtaining  a  transcript  of  the  Register's  tract  book,  something 
no  well  appointed  abstract  office  can  dispense  with.  The  tract 
book,  further,  has  all  the  dignity  of  other  recorded  evidence  in 
matters  affecting  title.^^  In  titles  originating  in  grant  or  con- 
firmation and  not  followed  by  patent,  much  more  particularity 
is  requisite  than  when  the  patent  is  relied  on  as  the  foundation 
of  title,  and  a  corresponding  fullness  of  narration  and  detail  is 
necessary. 

24 See  Lester's  or  Zabriskie's  Land  is  void  upon  its  face.     But   it   may 

Laws  for  a  full  exposition  of   these  be  assailed  in  a  direct  proceeding, 

acts  and  decisions.  26Eussell    v.    Whitehead,    4    Scam. 

26  A  grant   of   public  lands   cannot  (111.)   7. 
be    impeached    collaterally    unless    it 


CHAPTER  IX 

INITIAL   STATEMENTS 

§  129.  The  government  entry.  §  133.  Town  site  entries. 

§  130.  The  donative  act.  §  134.  The  Eeceiver  's  receipt. 

§  131.  Continued — Section   sixteen.  §  135.  State  lands. 

§  132.  Confirmations.  §  136.  The  root  of  title. 

§  129.  The  Government  Entry.  Whenever  the  abstract  goes 
back  to  the  foundation  of  the  title,  it  should  always  commence 
with  a  brief  note  of  the  original  entry  of  the  land  at  the  United 
States  Land  Office  of  the  district  in  which  the  same  is  located, 
giving  the  name  of  the  person  so  entering  it,  together  with  the 
date,  and  any  other  particulars  that  may  appear  and  are  per- 
tinent. Should  the  entrj^  from  any  cause,  have  been  canceled  and 
re-entry  made,  that  fact  should  also  be  noticed,  giving  date  of 
cancellation  and  re-entry.  "Where  parties  have  negligently 
omitted  to  record  the  Receiver's  receipt  or  the  patent,^  as  is  fre- 
quently the  case,  this  forms  the  only  item  of  information  relative 
to  the  origin  of  the  title,  and  will  be  of  great  service  to  counsel 
in  his  investigations,  as  well  in  determining  the  rights  of  the 
parties  as  in  supplying  missing  links  of  evidence.  The  entry  itself, 
if  valid,  gives  a  right  to  the  Register's  certificate  of  purchase,  and 
creates  an  equitable  interest  in  the  land.^  It  is  useful  in  showing 
the  inception  of  title,  and  forms  a  symmetrical  initial  to  the  his- 
tory which  follows.  No  particular  form  is  necessary  so  long  as 
the  facts  are  substantially  stated,  and  the  following  example  will 
suffice : 

The  northeast  quarter  of  Section  six.  Town  one,  north,  Bange 
twenty-three,  east  of  the  3d  Principal  Meridian,  was  entered  hy 
Thomas  J.  Holmes,  May  14,  1839,  at  the  United  States  Land 
Office  at  Milwaukee,  Wisconsin.  Certificate,  No.  341.  (Certifi- 
cate canceled,  and  re-entry  made,  June  10,  1839.  Certificate  No. 
800.) 

1  The  recording  laws  of  the  States,  2  Levi  v.  Thompson,  4  How.  (U.  S.) 

as  a  general  rule,  do  not  require  the      17. 
recording    of    the    Receipt,    although 
provision  therefor  is  always  made. 

134 


§  130]  INITIAL   STATEMENTS.  135 

This,  of  course,  applies  only  when  the  land  has  been  entered 
in  the  usual  manner,  and  never  includes  sections  16  or  36,  or 
such  other  lands  as  may  have  been  selected  by  the  State  in  lieu 
thereof,  and  which  are  commonly  known  as  the  "school  sections." 
Nor  would  lands  donated  for  specific  purposes,  as  to  assist  in  the 
construction  of  internal  improvements,  etc.,  be  susceptible  of  this 
treatment.  In  such  cases  a  recital  of  the  original  grant  should 
constitute  the  initial  statement  of  the  abstract. 

§130.  The  Donative  Act.  When  the  inception  of  title  is 
through  some  grant  of  Congress,  though  the  immediate  grants  are 
from  the  State,  the  preliminary  measures  by  which  the  State 
acquired  its  right  to  convey  should  appear  upon  the  abstract. 
A  grant  of  public  land  by  statute  is  the  highest  and  strongest 
form  of  title  known  to  our  law,^  and  vests  in  the  grantee  all  the 
title  which  the  United  States  had  at  the  time  of  the  grant  or  may 
afterward  acquire;  subject,  however,  to  the  conditions  and  re- 
strictions appended  thereto,  and  this,  although  a  patent  may 
afterward  issue.*  The  original  grant,  or  so  much  thereof  as  may 
be  necessary  to  show  the  conveyance,  should  therefore  form  the 
initial  statement  of  an  abstract  of  title  to  land  so  derived. 
Coupled  with  this  should  appear  so  much  of  the  official  action 
of  the  State  authorities  as  will  show  an  acceptance  on  their  part 
and  a  compliance  with  such  conditions  as  may  be  imposed  by 
the  granting  act.  These  need  not  be  set  out  at  length;  brief  ref- 
erences are  sufficient,  provided  all  the  essential  steps  are  sub- 
stantially noted.  Public  grants  to  States  are  usually  of  specified 
quantities  but  of  unascertained  location,  which  is  determined  by 
selection  in  accordance  with  the  terms  of  the  grant.  A  statement 
similar  to  the  following  should  preface  the  abstract  in  such  cases: 

Section  seven,  Town  thirty-nine  north,  Range  fourteen  east  of 
the  3d  Principal  Meridian,  with  other  lands,  was  selected  hy  the 
Commissioner  of  the  General  Land  Office,  under  the  direction  of 
the  President,  as  a  portion  of  those  tracts  granted  hy  the  United 
States  to  the  State  of  Illinois  hy  Act  of  Congress  approved  March 
2,  1827,  entitled  "An  Act  to  grant  a  quantity  of  land  to  the  State 
of  Illinois  for  the  purpose  of  aiding  in  opening  a  Canal  to  con- 
nect the  waters  of  the  Illinois  River  with  those  of  Lake  Michigan." 

Section  approved  hy  the  President  May  21,  1830. 

811  Opinions  Att'y  Gen.  47;  Dous-  v.  Jarvis,  65  111.  302;    Challefoux  v. 

man  v.  Hooe,  3  Wis.  46G.  Ducharme,  4  Wis.  554;  but  see  Foley 

4  9     Opinions     Att'y      Gen.      346;  v.  Harrison,  15  How.  433. 
Thompson  v.  Prince,  67  111.  281;  Hall 


136  A6STR.\CTS   OF    TITLE.  [§  130 

These  statements  are  usually  short,  from  the  fact  that  the  title 
at  this  stage  is  usually  unquestioned,  and  in  the  older  States  has 
acquired  all  the  elements  of  stahility  and  permanence  from  long 
acquiescence  and  the  effluxion  of  time.  The  examiner  will  find  no 
diflSculty  in  adapting  internal  improvement  or  railroad  grants 
from  the  hints  above  given,  and  further  illustrations  are  not 
deemed  necessary. 

A  selection  by  the  State  has  the  effect  of  an  entry  of  the  land, 
and  withdraws  tlie  tract  from  further  disposal,  unless  the  selec- 
tion shall  be  subsequently  rejected,  subject,  of  course,  to  the  per- 
fection of  any  pre-existing  valid  pre-emption  claims ;  ^  and  when 
a  particular  parcel  of  land  is  selected  b}^  a  State,  through  its 
officers  or  other  authorized  agents,  as  a  part  of  a  gross  acreage 
theretofore  granted,  and  such  selection  and  location  are  approved 
by  the  United  States,  the  title  becomes  perfect  and  attaches  to 
the  land  selected.^ 

§  131.  The  Same — Section  Sixteen.  The  immediate  title  to 
section  sixteen,  and  in  States  west  of  the  ]\Iissouri  river  to  section 
thirty-six  as  weU,  is  derived  from  the  State,  although  the  original 
title  comes  from  the  Federal  Government,  These  sections,  in  pur- 
suance of  the  cherished  policy  of  the  government,  are  specilically 
appropriated  to  the  use  of  common  schools,  which  appropriation 
or  reservation  forms  a  part  of  the  compact  by  which  the  State 
is  admitted  into  the  Union.  When  the  lands  are  surveyed  and 
marked  out  the  possessory  right  of  the  State  at  once  attaches,  and, 
if  there  be  no  legal  impediment,  becomes  a  legal  title.'  Where 
such  section  has  been  sold  or  otherwise  disposed  of  by  the  gov- 
ernment, other  lands,  equivalent  thereto  and  as  contiguous  as  may 
be,  are  granted  in  their  stead,  such  selection  being  known  as  "lieu 
lands";  the  act  of  selection  of  a  section  in  lieu  of  section  sixteen, 
is  that  by  which  the  tract  becomes  appropriated  for  school  pur- 
poses.^ A  formal  introduction,  therefore,  of  land  in  sections  six- 
teen or  thirty-six,  would  read  somewhat  as  follows : 

Section  sixteen,  Town  one  north,  Range  thirty-one  east  of  the 
second  Frincipal  Meridian,  was  granted  hy  the  United  States  to 
the  State  of  Michigan  for  the  use  of  schools,  hy  act  of  Congress, 
June  23,  1836,  providing  for  the  admission  of  Michigan,  as  a  State 

6  See     Instructions     Commr.     Gen.  8  Hedrick  v.  Hughes,  15  Wall.   (U. 

Land  Office,  Jan.  5,  1872.  S.)  123. 

6  Megerle  v.  Ashe,  27  Cal.  322. 

7Ck)oper  v.  Roberts,  18  How.    (U. 
S.)  173. 


§  132]  INITIAL  STATEMENTS.  137 

of  the  Union,  and  accepted  hy  the  State  of  Michigan  hy  act  of 
Legislature  approved  July  25,  1836. 

The  statutes  making  grants  of  specific  sections  of  land  to  the 
several  states  for  school  purposes  contain  no  provisions  for  the 
issuance  of  a  patent  or  other  evidence  of  title.  In  such  cases 
the  statute  is  itself  a  conveyance  and  ample  for  all  purposes. 

Where  section  sixteen,  as  returned  by  the  survey,  is  found  to 
be  occupied  by  pre-emption  settlements  made  under  the  law  per- 
mitting settlements  on  unsurveyed  lands,  or  where  the  land  has 
been  otherwise  disposed  of,  or  prior  rights  have  attached,  and 
a  selection  of  lieu  lands  is  made,  the  preliminary  note  must  show 
the  facts  of  selection,  confirmation,  etc.,  necessary  to  bring  it 
within  the  law  vesting  the  title,  thus: 

The  northeast  quarter  of  Section  seventeen,  Town  ten  north, 
Range  twenty-two  east  of  the  Fourth  Principal  Meridian,  was 
selected  hy  the  Secretary  of  the  Treasury  **  in  lieu  of  land  in 
Section  sixteen,  hy  virtue  of  an  act  of  Congress,  approved  June 
15,  1844,  and  entitled  "An  Act  to  authorize  the  selection  of  cer- 
tain school  lands  in  the  T erritories  of  Florida,  Iowa  and  Wis- 
consin," and  was  granted  hy  the  United  States  to  the  State  of 
Wisconsin  for  the  use  of  schools,  hy  act  of  Congress  approved 
August  6, 1846,  entitled  "An  Act  to  enable  the  people  of  Wisconsin 
Territory  to  form  a  Constitution  and  State  government,  and  for 
the  admission  of  such  State  into  the  Union,"  and  accepted  hy  the 
State  of  Wisconsin  hy  the  Constitution  framed  February  1,  1848.^ 

§  132.  Confirmations.  In  the  West  and  Southwest,  the  title 
to  land  rests,  in  many  cases,  upon  confirmed  claims  of  inchoate 

8a  Under  the  present  practice,   se-  the  Interior  for  his  approval.     When 

lections    from    other   public   lands   as  approved,  a  certified  copy  of  the  same 

indemnity  for  deficiencies  in  sections  is  transmitted  to  the  governor  of  the 

16  and   36   and   fractional   townships  State  in  which  the  selections  are  made, 

under    acts    of    May    20,    1826,    and  and  a  copy  thereof  transmitted  to  the 

February  26,  1859,  are  made  by  agents  local  office  from  which  the  selections 

appointed    by    the    respective    States,  are  received,  to  be  placed  on  file,  and 

which  selections  are  filed  in  the  local  the  approvals  to  be  noted  on  its  rec- 

offices  of  the  district  in  which  the  land  ords.     By  the  approval  of  the  Secre- 

is  situated,  and  if  found  to  be  cor-  tary,  the  fee  is  passed  to  the  State, 

rect  are  certified  to  the  General  Land  See  see.  2449  Kev.  Stat.,  U.  S. 
Office  by  the  register  of  the  local  office  9  Ordinarily  no  record  evidence  of 

where  filed.     If,  upon  examination  by  the  fact  of  selection  is  required  be- 

the  Commissioner,  the  same  are  found  yond  the  entries  in  the  books  of  the 

to  inure  to  the  State,  a  list  is  made  register  of  the  local  land  office. 
out  and  certified  to  the  Secretary  of 


138  ABSTRACTS   OF    TITLE.  [§132 

rights  derived  from  the  governments  which  owned  the  land  prior 
to  the  conquest  or  cession,  the  method  of  confirraation  differing 
considerably  with  the  locality.  The  rights  of  parties  claiming 
nnder  titles  from  the  Spanish  or  ]\Icxican  Governments  are  de- 
termined by  special  commissions  appointed  for  the  purpose,  or 
l\v  the  United  States  courts,  and  such  determinations  are  usually 
folhnved  by  patent. 

^Mexican  grants  were  made  by  the  governors  of  the  Territories 
in  conformity  with  laws  on  that  subject,  and  a  document  signed 
by  the  governor  served  as  the  basis  of  title,  while  maps  of  the 
lands  granted  and  circumstantial  reports  were  preserved  in  the 
archives  of  the  supreme  government.  A  person  claiming  under 
these  grants  is  entitled  to  a  patent  from  the  United  States  when- 
ever his  claim  has  been  confirmed  by  the  commissioners,  the  Dis- 
trict Court,  or  the  Supreme  Court,  provided  his  proof  of  con- 
firmation is  accompanied  by  a  survey  certified  by  the  surveyor 
general.  But  neither  the  decree  of  the  court,  nor  the  survey,  nor 
the  patent,  is  conclusive  on  anybody  but  the  government  and 
the  patentee.  The  rights  of  third  parties  are  expressly  saved  by 
act  of  Congress,  and  those  who  claim  a  title  adverse  to  the  patentee 
have  still  a  chance  to  establish  it  in  the  proper  courts  of  the 
State.^°  Whenever  practicable,  the  decree  of  confirmation,  or 
reference  to  it,  together  with  a  note  of  the  survey  and  approval 
of  the  surveyor  general,  should  form  the  initial  statement  of  the 
abstract  and  precede  the  patent. 

The  territor}'  lying  north  of  the  Ohio  River  and  west  of  the 
Alleghanies  and  extending  to  the  Mississippi,  was  claimed  by 
Virginia  previous  to  1776  to  be  within  its  chartered  limits,  but 
was  not  reduced  to  its  possession  until  the  war  of  the  Revolution. 
Previous  to  that  time,  however,  numerous  settlements  had  been 
made  within  that  portion  of  the  territory  which  at  present  com- 
prises the  States  of  Indiana  and  Illinois,  consisting  principally 
of  French  inhabitants  from  Canada,  who  held  the  lands  they 
occupied  under  concessions  from  French  and  English  authorities. 
The  possession  and  titles  of  these  people  were  respected  by  the 
State  of  Virginia,  and  on  its  cession  of  the  territory  to  the  United 
States  it  expressly  stipulated  for  their  confirmation,  which  was 
afterward  effected  by  suitable  legislation. 

In  the  matter  of  pre-existing  titles,  the  United  States  has  never 

10  See    Instructions    and    Opinions,  cial  court  was  established  for  the  set- 

Atty.    Gen.    Sept.    29,    1859,    Nov.    9,  tlement  of  private  land  claims  in  the 

1859;    Mooae    v.    Wilkinson,    13    Cal.  States  of  Arizona,  Nevada,  New  Mex- 

478.     By  act  of  March  3,  1891,  a  spe-  ico  and  Utah. 


§  133]  INITIAL   STATEMENTS.  139 

asserted  anything  more  than  a  sovereign  right  over  the  subject. 
His  property  rights  in  and  to  the  soil  have  never  been  interfered 
with,  and  a  patent  adds  nothing  to  the  force  of  a  confirmation." 
It  is  of  value  as  record  evidence  of  the  possession  and  title  of  the 
ancestor,  and  of  the  recognition  and  confirmation  of  such  title 
by  the  United  States.  It  obviates  controversies  at  law  respecting 
the  land,  and  becomes  an  instrument  of  quiet  and  security. 
Founded  as  it  is  upon  a  survey  of  the  government,  it  removes  all 
doubts  as  to  the  boundaries  of  the  tract,  which  always  arises  when 
their  establishment  rests  on  uncertain  evidence,  yet  it  adds  noth- 
ing to  the  interest  vested  by  the  confirmation. 

In  the  legislation  of  Congress,  a  patent  has  a  double  operation. 
It  is  a  conveyance  by  the  government  when  the  government  has 
any  interest  to  convey,  but  where  it  is  issued  upon  the  confirma- 
tion of  a  claim  of  previously  existing  title  it  is  merely  documen- 
tary evidence,  having  the  dignity  of  a  record,  of  the  existence 
of  that  title,  or  of  such  equities  respecting  the  claim  as  justify 
its  recognition  and  confirmation  by  the  United  States.  The  in- 
strument is  not  the  less  efficacious  as  evidence  of  previously  exist- 
ing right,  because  it  also  embodies  words  of  release  or  transfer 
from  the  government.^'^ 

§  133.  Town  Site  Entries.  It  frequently  happened  that  the 
advancing  tide  of  immigration,  not  only  pushed  forward  the  ad- 
venturous pioneer  and  agriculturist  beyond  the  line  of  the  public 
surveys,  but  in  many  cases  whole  communities  settled  and  formed 
a  town  or  village.  These  settlements,  sometimes  on  surveyed  and 
sometimes  on  unsurveyed  lands,  have  been  provided  for  by  several 
acts  of  Congress.  The  first  act,  approved  July  1,  1864,^^  provided 
for  the  founding  of  cities  or  towns  upon  the  public  domain,  and 
for  entering  the  land  upon  which  cities  and  towns  had  already  been 
founded.  This  was  supplemented  by  the  act  of  March  3,  1865, 
which  prescribed  rules  where  the  lots  were  of  different  dimensions, 
and  not  uniform.  A  further  act  approved  March  2,  1867,  author- 
ized the  entry  of  public  lands,  settled  upon  and  occupied  as  town 
sites  in  trust  for  the  several  use  and  benefit  of  the  occupants  thereof 

11  Langdeau  v.  Hanes,  21  Wall.  (U.  1844,  but  was  repealed  by  tlie  act 
S.)  521;  Eyan  v.  Carter,  93  U.  S.  78.  above  referred  to.     Under  the  former 

12  Langdeau  v.  Hanes,  21  Wall.  (U.  system  no  title  could  be  secured  to 
S.)  521;  Morrow  v.  Whitney,  5  Otto  town  projjerty  until  the  locality  had 
(U.    S.)    551.  been  embraced  by  tlie  general  system 

13  A  town  site  law  with  a  very  re-  of  public  surveys, 
stricted    application    was    passed    ia 


140  ABSTRACTS   OP    TITLE.  [§  133 

ill  prescribed  quantities  according  to  the  number  of  inhabitants, 
respectively,  in  said  towns.  It  will  thus  be  seen  that  two  methods 
exist  of  acquiring  title  to  land  in  town  sites  at  the  inception  of  the 
town. 

By  the  first  method  a  privilege,  both  of  purchase  on  sale  and 
pre-emption  at  minimum  figures,  is  granted,  provided  certain  pre- 
liminary conditions  are  complied  with.  The  requisites  consist  of 
filing  with  the  recorder  a  plat  or  map  of  the  town,  describing  its 
exterior  boundaries  according  to  the  lines  of  the  public  surveys, 
when  said  surveys  have  been  executed.  The  map  must  also  exhibit 
the  name  of  the  city  or  town;  the  streets,  squares,  etc.,  together 
with  the  size  and  measurement  of  each  municipal  subdivision.  The 
map  must  further  be  verified  by  the  oath  of  the  party  acting  for 
or  on  behalf  of  the  town.  When  the  town  is  within  the  limits  of 
an  organized  land  district,  a  similar  copy  must  be  filed  with  the 
Register  and  Receiver,  and  a  copy  must  be  forwarded  to  the  Gen- 
eral Land  Office,  within  one  month  after  filing  with  the  recorder. 
Under  the  provisions  of  this  act  patents  issue  for  all  lots,  the  price 
of  the  lots  being  graded  by  size,  location,  etc.^*  The  second  method 
is  under  the  act  of  1867,  which  grants  to  the  inhabitants  of  cities 
and  towns  on  the  public  lands  the  privilege  of  entering  the  lands 
occupied  as  town  sites  at  a  minimum  price  of  $1.25  per  acre.  The 
entry  is  made  by  the  corporate  authorities  of  such  towns  and  cities, 
or  by  the  judges  of  the  county  courts  acting  as  trustees  for  the 
occupants  thereof,  according  to  their  respective  interests.  Either 
method  may  be  resorted  to,  but  the  inhabitants  are  limited  to  one 
or  the  other  of  the  modes  prescribed. 

The  preliminary  measures  attending  the  inception  of  the  title  of 
town  and  city  property  when  acquired  under  the  acts  above  noted, 
should  appear  wnth  reasonable  degree  of  detail.  If  by  the  former 
method,  the  plat,  or  so  much  as  may  be  necessary  to  show  the 
property  in  question,  should  be  given.     The  preliminary  state- 

14  The  first  method  limits   the   ex-  of  the  Interior  may  order  from  time 

tent  of  the  area  of  the  city  or  town  to  time,  as  the  municipal  property  may 

to  640  acres,  to  be  laid  off  into  lots,  increase    or    decrease,    after    at    least 

and  which,  after  filing  in  the  General  three  months'  notice. 

Land  Office  the  transcript,  statement,  A  privilege,  however,  is  granted  to 

and   testimony  required   by   law,   are  any  actual  settler  upon  any  one  lot  of 

to  be  offered  at  public  sale  to  the  high-  pre-empting  that,  and  any  additional 

est  bidder,  at  a  minimum  of  ten  dol-  lot  on  which  he  may  have  "substan- 

lars  for  each  lot.     Lots  not  thus  dis-  tial  improvements, ' '  at  said  minimum, 

posed  of  are  made  thereafter  liable  to  at  any  time  before  the  day  fixed  for 

private  entry  at  said  minimum,  or  at  the  public  sale, 
such  reasonable  price  as  the  Secretary 


§  134]  INITIAL   STATEMENTS.  141 

ment  in  this  case  would  consist,  in  addition  to  the  plat,  of  a  resume 
of  the  steps  taken,  with  dates,  etc.  In  the  latter  case  it  would 
differ  but  slightly  from  an  ordinary  entry.^^ 

§134.  The  Receiver's  Receipt.  The  receipt  issued  by  the  Re- 
ceiver of  a  district  land  office,  though  constituting  no  title,  is  evi- 
dence of  an  equitable  interest,  which,  in  many  of  the  States,  is 
accorded  a  dignity  and  effect  equal  to  a  complete  investiture  by 
patent.  Upon  the  strength  of  this  receipt  large  investments  are 
frequently  made  and  great  improvements  commenced,  while  the 
land  often  passes  through  many  hands  before  a  patent  has  been 
issued.  In  many  cases  the  patent  is  never  called  for  or  formally 
delivered,  the  receipt  being  relied  upon  as  sufficient  evidence  of 
title  to  warrant  the  largest  expenditures  and  the  most  ample  cove- 
nants of  title.^® 

In  a  certain  sense  this  is  true ;  for  though  the  patent  is  the  su- 
perior and  conclusive  evidence  of  legal  title,^'  yet  the  receipt  so 
far  precludes  the  government  as  to  invalidate  a  second  sale  of  the 
land,  and  the  patent,  when  issued,  by  relation  extends  back  to  the 
time  of  the  purchase  so  as  to  cut  off  intervening  claimants.^^  In 
the  courts  of  the  United  States,  however,  an  equitable  title,  how- 
ever strong,  cannot  be  set  up  at  law  to  defeat  the  legal  title  by 
patent, ^^  and  an  abstract  which  fails  to  disclose  such  instrument 
reveals  a  vital  defect  that  should  deter  a  purchaser  from  consum- 
mating the  sale  until  it  has  been  remedied.  The  receipt  of  the  re- 
ceiver, however,  is  prima  facie  evidence  that  the  law  has  been  com- 
plied with,^'*  and  under  the  ruling  of  State  courts  has  been  held 
to  convey  the  entire  beneficial  interest  in  the  land,  leaving  nothing 
in  the  government  but  a  naked  trust  of  the  fee,^^  while  it  establishes 
in  the  person  entitled  to  it  a  right  to  the  possession  as  against  one 
who  shows  no  title.^^  On  the  other  hand,  the  doctrine  of  caveat 
emptor  applies  with  peculiar  force  to  purchasers  from  an  entry- 
is  See  acts  above  noted;  13  U.  S.  18  Stark  v.  Starrs,  6  Wall.  402; 
Stat,  at  Large,  343 ;  13  U.  S.  Stat,  at  Magruder  v.  Esmay,  35  Ohio  St.  221. 
Large,  529 ;  Instructions  Commission-  19  Baird  v.  Wolf,  4  McLean,  549 ; 
er  Aug.  20,  1864;  April  26,  1865;  Hooper  v.  Scheimer,  23  How.  235; 
Sept.  21,  1868.  Consult  also  Lester's  Bagnell  v.  Broderick,  13  Pet.  436. 
or  Zabriskie  's  Land  Laws.                                20  Allison  v.  Hunter,  9  Mo.  402. 

16  A  patent  issued  in  the  name  of  21  Waters  v.  Bush,  42  Iowa,  255; 
the  purchaser  inures  to  the  benefit  of  and  see  Worth  v.  Branson,  98  U.  S. 
the  grantee  under  a  deed  executed  be-       118. 

fore  the  patent  issued:   Magruder  v.  22  McDonald    v.    Edmonds,   44    Cal. 

Esmay,  35  Ohio  St.  221.  328. 

17  Bagnell  v.  Broderick,  13  Pet.  436. 


142  ABSTRACTS   OP   TITLE.  [§134 

mau  aud  the  government  always  has  it  within  its  power  to  cancel 
all  entries  of  public  land  at  any  time  before  patent  issues  thereon.*' 
The  instrument  is  very  informal,  and  its  main  provisions  may  be 
shown  as  follows: 


Receiver  ** 

to 

William  RoMnson. 


Duplicate  receipt,  No.  5,084. 
Dated  May  1,  1839. 
Recorded  May  31,  1839. 
Volume  "A''  of  deeds,  page  208. 


Acknowledges  payment  in  full  ($190.00)  for  the  northeast  quar- 
ter of  Section  ten.  Town  one  north,  Range  tiventy-three,  east  of  3d 
P.  M.,  Milwaukee  land  district. 

The  foregoing  statement  immediately  follows  the  note  of  entry, 
and,  to  preserve  chronological  sequence,  precedes  the  patent  when 
that  instrument  is  shown.  In  receipts  and  patents,  no  special  desig- 
nation of  the  property  with  reference  to  political  divisions  is  made, 
but  same  is  described  as  of  a  certain  land  district.  This  has  been 
held  to  be  a  sufficient  designation,  the  name  of  the  county  not  being 
essential,  and  the  land  district  sufficiently  indicating  the  State.*^ 

§  135.  State  Lands.  Lands  granted  to  the  States  for  school 
and  university  purposes,  as  well  as  grants  for  internal  improve- 
ments, are  disposed  of  in  much  the  same  manner  as  the  public 
lands  of  the  general  government.  The  special  method  of  their 
disposal  is  regulated  by  express  statute  in  each  State,  and  while 
the  system  in  all  the  States  is  based  upon,  and  closely  follows  that 
pursued  by  the  general  government,  minor  differences  of  detail 
preclude  more  than  a  general  notice.  In  some  States  the  disposal 
of  the  land  is  placed  in  the  hands  of  the  Governor  and  Secretary 
of  State,  who  issue  and  sign  all  patents  emanating  from  the  State  j 
in  others  it  has  been  placed  in  the  hands  of  a  special  commission, 
to  whom  is  given  the  power  of  disposal  and  control  of  the  invest- 
ment of  the  funds  arising  therefrom. 

A  certificate  of  sale  of  State  lands  is  not  sufficient  to  carry  the 
fee,  which,  by  analogy  to  the  doctrine  of  sales  of  Federal  lands, 

23  Jones  v.  Meyers,  2  Idaho,  793 ;  ever,  is  as  shown  in  the  text,  as  the 
Hosmer  v.  Wallace,  47  Cal.  461;  Ean-  instrument  does  not  purport  to  be 
dall  V.  Edert,  7  Minn,  450;  Bellows  anything  more  than  an  acknowledg- 
V.  Todd,  34  Iowa,  18.  ment  of  the  receipt  of  money  by  the 

24  If   desired,  say  ' '  United  States,  person  signing  it. 

to,"  etc.     The  better  practice,  how-  26  Mapes  v.  Scott,  94  111.  379. 


§  135]  INITIAL   STATEMENTS.  143 

remains  in  the  State  until  patent  has  issued.  It  entitles  the  pur- 
chaser, however,  to  the  beneficial  interest  in  the  premises,  and  is 
sufficient  evidence  of  title  to  vest  in  him  the  same  rights  of  posses- 
sion, enjoyment,  descent,  transmission  and  alienation  of  the  lands 
therein  described,  and  the  same  remedies  for  the  protection  of  said 
rights,  as  against  all  persons  except  the  State,  that  he  would  possess 
if  he  were  the  owner  thereof  in  fee.^^ 

The  methods  of  sale  are  too  widely  divergent  to  inquire  into. 
Thus,  in  "Wisconsin,  sales  of  school  lands  are  made  by  the  com- 
missioners of  school  and  university  lands ;  ^"^  in  Illinois  by  the 
county  superintendents.^^  Each  State  provides  a  method  of  its 
own  with  special  officers  to  execute  the  power. 

A  certificate  of  sale  of  State  lands,  like  the  duplicate  receipt  of 
1he  receiver,  is  informal  in  substance,  the  main  point  being  the 
execution  by  the  proper  statutory  officer.  Its  provisions  are  usu- 
ally prescribed  b}^  statute,  and  should  consist  of  a  description  of 
the  land  sold,  the  sum  paid,  and  where  only  a  portion  of  the  pur- 
chase mone}'  is  paid  the  amount  remaining  due  thereon,  the  time, 
place  and  terms  of  payment,  and  that  if  it  shall  be  duly  discharged, 
the  purchaser  or  his  assigns  will  be  entitled  to  a  patent  for  such 
land.  As  this  matter,  when  followed  by  patent,  is  only  introduc- 
tory, the  certificate  may  be  shown  briefly  as  follows : 


State  of  Wisconsin 

to 

Abraham  Smith 

Document,  No.  300. 


Commissioner's  certificate,  No.  104. 
Dated  May  24,  1850. 
'  Recorded  June  1,  1S50. 
Book,  ''A,"  page  45. 


Acknowledges  receipt  of  $26.50  in  (part)  payment  for  Lot  six, 
in  Town  one  north,  Range  nineteen  east  of  the  Fourth  Principal 
Meridian,  in  the  northtvest  quarter  of  Section  sixteen  (and  that 
said  Abraham  Smith  tvill  he  entitled  to  a  patent  therefor  on  pay- 
ment of  $236.00). 

Where  land  is  granted  to  a  state,  for  the  purpose  of  aiding  in- 
ternal improvements,  it  has  been  customary  for  the  State  to  trans- 
fer the  land  to  trustees  or  commissioners  for  sale  and  disposal. 
In  such  cases  certificates  of  purchase,  where  the  land  has  been 
sold  on  partial  payments  or  other  terms,  will  frequently  be  found 

26  This  matter   is   purely   statutorj.  tificates  of  purchase,  and  the  methoil 

The  reader,  for  greater  certainty,  will  of  conducting  sales, 
consult  the  statutes  of  his  own  State,  27  R.   S.  Wis.,   1878,   106,  chap.   15. 

both    as   to    the    legal   effect   of    cer-  28 1\.  S.  111.,  1874,  chap.  122. 


144  ABSTRACTS  OP   TITLE.  [§  135 

upon  the  records.     When  followed  by  deed  only  a  brief  mention 
of  such  certificates  seems  necessary.    The  following  is  an  example : 

Trustees  of  Illinois  and^  ^      ±    ,    n    *■£    *     xr     r.-^ 
,,.  ,  .         ^       ,  Trustee  s  Certificate,  No.  7o2. 

Michigan  Canal  ^^   .    y   i,r       -,«   ^^^^ 

-^  1  Dated,  May  13,  1856. 

T  ry    mi.  I  Rccordcd,  Juue  2,  1856. 

James  R.  Thomas  „     ,    ^^o  ^^.« 

Doc.  74,799.  J  ^''^'  ^^^'  P^^'  ^^^- 

Recites  the  purchase  of  the  South  East  quarter  of  Section  Eleven 
(11)  Town  38,  North,  Range  13,  East  of  the  Third  Principal  Merid- 
ian, for  the  sum  of  $6,400.00  on  the  usual  terms.^^ 

§136.  The  Root  of  Title.  The  forej^oing  paraprraphs  have 
reference  only  to  well  ascertained  beginnings  of  title,  which  may 
be  traced  with  little  difficulty  from  its  source  or  fountain  head.  In 
all  States  west  of  the  AUeghanies,  with  possibly  the  exception  of 
Kentucky  and  Tennessee,  this  may  be  easily  accomplished,  and  a 
purchaser  may  reasonably  insist  on  the  production  of  a  chain  of 
title  from  the  government.  Such,  however,  is  not  always  done, 
and  the  examiner,  from  information  furnished  by  the  vendor,  pre- 
pares a  preliminary  statement,  resting  mainly  on  tradition,  in 
which  is  recited  the  condition  and  course  of  the  title  at  some  re- 
mote period,  which  is  followed  by  a  regular  examination  from 
that  time,  usually  twenty  years  or  more  prior  to  the  date  of  the 
abstract.  This  is  following  the  English  precedents,  and  is  not 
without  authoritative  usage  in  the  United  States.  Where  infor- 
mation is  difficult  of  access,  or  impossible  of  procurement  from 
official  or  authentic  sources,  as  is  often  the  case  in  the  original 
States,  such  a  practice  might  be  followed  as  the  only  available  meth- 
od, leaving  the  keenness  of  counsel  to  detect  flaws,  and  call  for  fur- 
ther evidence  on  desired  points ;  but  in  the  States  formed  from  the 
territories  where  the  rectangular  system  of  surveying  and  registra- 
tion of  conveyances  prevails,  no  good  reason  exists  why  a  complete 
abstract  showing  the  inception  of  title  should  not  be  produced. 
Where  a  preliminary  sketch  is  given  as  forming  the  root  of  title, 
the  examiner  should  carefully  specify  all  his  sources  of  informa- 
tion, and,  if  consisting  of  hearsay  or  tradition  only,  expressly 
disavow  all  responsibility  for  the  truth  of  the  matters  therein  re- 
cited. No  other  safe  course  is  open,  and  the  reader  is  apprised  at 
the  outset  of  the  value  to  be  placed  upon  the  statement. 

29  These  terms  are  usually  fixed  by 
statute.  See  Eev.  Stat,  of  Illinois  of 
1845,  pp.  600,  608. 


CHAPTER  X 

CONGRESSIONAL  AND  LEGISLATIVE  GRANTS 

§  137.     Legislative     grants     generally      §  139,     Construction      of      legislative 

considered.  grants. 

§  138.    Nature  and  effect.  §  140.     rormal  requisites. 

§  137.  Legislative  Grants  Generally  Considered.  Not  a  few 
titles  have  their  foundation  in  Congressional  or  legislative  grants, 
or  are  grounded  upon  legislative  confirmations  of  previously  exist- 
ing inchoate  or  equitable  rights.  A  recurrence  to  these  is  neces- 
sary, even  though  a  patent  may  appear,  as  in  many  cases  the  patent 
is  only  confirmatory  evidence  of  prior  claims  and  is  conclusive 
only  between  the  sovereign  and  the  patentee  or  these  in  privity  with 
him. 

A  grant  of  land  by  statute  is  the  highest  and  strongest  form  of 
title  known  to  our  law,*  and  does  of  itself,  propria  vigore,  pass 
to  the  grantee  all  the  estate  of  the  government  except  what  is  ex- 
pressly excepted.'^  As  a  primary  conveyance,  however,  it  is  not 
in  general  use,  for,  as  a  rule,  the  government  parts  with  its  title 
only  by  patent,  but  when  an  act  of  Congress  purports  to  convey 
land  in  words  of  present  grant  it  is  equally  as  effective  as  a  patent 
and  vests  a  perfect  and  irrevocable  title.^ 

§  138.  Nature  and  Effect.  The  United  States  or  a  State  may 
make  a  grant  of  land  by  a  law  as  effectually  as  by  a  patent  issued 
in  pursuance  of  a  law.  In  the  former  case  it  is  the  direct  act  of 
the  government  through  the  Legislature ;  in  the  latter  it  is  a  minis- 
terial act  under  the  direction  of  the  Legislature.  A  confirmation 
by  law  of  a  claim  of  title  in  public  lands  is  to  all  intents  and  pur- 
poses a  grant  of  such  lands,*  and  where  one  is  in  possession  of 
land,  a  resolve  of  the  Legislature,  releasing  them  to  him,  passes  a 

111  Opinions  Att'y  Gen.  7.  4  Challef  oux    v.    Ducharme,    i    Wis. 

2  9  Opinions  Att'y  Gen.  253.  554;    Dean   v.    Bittner,   77    Mo.    101; 

3Strother  v.  Lucas,  12  Pet.  (U.  S.)  Hall  v.  Jarvis,  65  111.  302;  Langdeau 

454;  Terrett  v.  Taylor,  9  Cranch  (U.  v.  Hanes,  21  Wall.   521;    Strother  v. 

S.),  50;  Chouteau  v.  Eckhart,  2  How.  Lucas,  12  Pet.  411;  Field  v.  Seabury, 

(U.    S.)    372;    Swann  v.  Lindsey,   70  19  How.  323. 
Ala.  507;  Dean  v.  Bittner,  77  Mo.  101. 

145 

Warvelle  Abstracts — 10 


146  ABSTRACTS   OF   TITLE.  [§  138 

title  without  any  further  act,  except  performance  of  the  condi- 
tions, if  any.* 

An  act  of  Congress,  containing  provisions  clearly  indicating  an 
intention  to  pass  the  fee  unconditionally  and  absolutely,  operates 
ipso  facto,  to  vest  the  title  in  the  grantee,^  but  if  the  grant  be 
coupled  with  a  condition  it  will  not  operate  to  vest  the  title  until 
such  condition  has  been  complied  with.' 

So,  too,  an  act  of  Congress  granting  land  to  one  person,  is  higher 
evidence  of  title  than  a  patent  of  the  same  land  subsequently  is- 
sued by  the  officers  of  government  to  another  person,  and  cannot 
be  defeated  by  such  subsequent  patent;*  thus,  titles  derived  from 
the  State,  of  lands  selected  under  the  ''swamp  grant,"  will  take 
precedence  over  patents  from  the  United  States  issued  subseciucnt 
to  the  date  of  the  granting  act.® 

Legislative  grants  and  confirmations  arc  usually  followed  by 
patent,  the  issuance  of  which  is  specially  provided  for  in  the  grant- 
ing act,  yet  the  patent  in  most  cases  adds  nothing  to  the  force  of 
the  grant,  but  is  merely  confirmatory  of  what  has  preceded.  If 
a  claim  be  made  to  land  with  defined  boundaries  the  legislative 
confirmation  perfects  the  title  to  the  particular  tract,  and  a  sub- 
sequent patent  is  only  documentary  evidence  of  that  title.  If  the 
claim  be  to  quantity,  and  not  to  a  specific  tract  capable  of  identi- 
fication, a  segregation  by  survey  will  be  required  and  the  confirma- 
tion will  then  immediatel}'^  attach  the  title  to  the  land  segregated.^" 

Analogous  to  the  rule  which  obtains  in  case  of  patents,  where 
there  are  two  confirmations  or  grants  of  the  same  land,  the  elder 
must  prevail,  and  will  give  the  better  title.^^  The  government, 
like  an  individual,  has  no  power  to  withdraw  or  annul  its  grant ; 
,the  first,  if  lawful,  must  stand,  and  the  second  cannot  operate  as 
a  consequence,  for  the  reason  that  the  gi'antor,  when  it  was  made, 
had  no  estate  to  convey.^^ 

§  139.  Construction  of  Legislative  Grants.  A  Legislative  grant 
by  the  State  is  an  executed  contract, ^^  and  as  such  is  within  the 

6  Mayo  V.  Libby,  12  Mass.  339;  v.  Brown,  40  Iowa,  333;  Daniel  v. 
Ryan  v.  Carter,  93  U.  S.  78.  I'urvis,  50  Miss.  261. 

SBallance  v.    Tesson,    12    111.    327;  lOLangdeau  v.  Hanes,  21  Wall.  (U. 

Grignons,    Lessee,    v.    Astor,    2    How.  S.)    521;    Swann  v.  Lindsey,   70  Ala. 

319.  507;  Dean  v.  Bittncr,  77  Mo.  101. 

7  Thompson  v.  Prince,  67  111.  281.  11  Willot  v.   Sanford,   19   How.    79; 

8  Dousman    v.    Hooe,    3    Wis.    466;  9  Opinions  Att'y  Gen.  253. 
Megerle  v.  Ashe,  27  Cal.  322.  12  11  Opinions  Att'y  Gen.  47. 

SRuigo  V.  Rotau,  29  Ark.  56;   Kel-  13  The  Binghamton  Bridge,  3  Wall, 

ler  V.  Brickey,  78  IlL  133;   R.  R.  Co.       (U.    S.)    51;    Dartmouth    College    v. 


§  140]  CONGRESSIONAL   AND   LEGISLATIVE   GRANTS.  147 

clause  of  the  Constitution  of  the  United  States  which  prohibits  the 
States  from  passing  any  law  impairing  the  obligation  of  contracts, 
it  cannot,  therefore,  be  destroyed,  and  the  estate  divested  by 
any  subsequent  enactment.  The  rule  applies  with  equal  force  to 
corporations  as  to  individuals,  and  when  the  State  enters  into  a 
contract  with  a  municipal  corporation,  the  subordinate  relation 
of  the  corporation  ceases,  and  that  equity  arises  which  exists  be- 
tween all  contracting  parties.  The  control  of  the  Legislature  over 
the  corporation  can  be  exercised  only  in  subordination  to  the  prin- 
ciple which  secures  the  inviolability  of  contracts.^* 

Congressional  grants  are  governed  by  the  same  rules,  and  a 
grant  by  Congress  to  a  State  cannot  be  recalled  at  the  will  of 
Congress  any  more  than  a  grant  to  an  individuah^^  Generally, 
in  a  conveyance  by  the  sovereign,  of  property  which  is  usually 
the  subject  of  private  ownership,  the  extent  of  the  thing  granted 
is  to  be  ascertained  by  the  rules  of  construction  applicable  to  pri- 
vate conveyances ;  yet  in  construing  a  Congressional  grant,  it  must 
be  remembered  that  the  act  by  which  the  grant  is  made  is  a  law 
as  well  as  a  conveyance,  and  that  such  effect  must  be  given  to  it 
as  will  carry  out  the  intent  of  Congress;  and  that  the  rules  of 
the  common  law  must  yield  in  this,  as  in  all  other  cases,  to  the 
legislative  will.^^  Another  exception  will  be  observed  in  that  the 
ordinary  rule  construing  the  grant  most  strongly  against  the  gran- 
tor is  here  reversed,  and  whatever  is  not  given  expressly,  or  very 
clearly  implied  from  the  words  of  the  grant,  is  withheld.^' 

§  140.  Formal  Requisites.  No  particular  terms  are  necessary 
in  a  grant  by  Congress  or  the  Legislature,^^  which  will  vary  with 
the  exigencies  of  each  particular  case.  In  preparing  a  synopsis 
of  such  grants  the  essential  features  to  be  observed  are:  the  title 
of  the  act;  the  date  of  passage  or  approval;  the  subject  matter, 
including  the  granting  words,  in  the  language  of  the  act ;  and  the 
conditions  or  restrictions,  if  any,  annexed  to  the  grant.  A  prac- 
tical example,  taken  from  the  files  will  better  serve  to  illustrate 
the  matter.  Peter  Poncin  entered  in  due  form  a  certain  tract  of 
land,  which  entry  was  afterward  canceled  by  the  commissioner 
of  the  General  Land  Office,  but  not  until  Poncin  had  made  con- 
Woodward,  4  Wheat.  (U.  S.)  625;  16  E.  R.  Co.  v.  R.  R.  Co.,  97  U.  S. 
Dingman  v.  People,  51  111.  267.                  491. 

14  Grogan  v.  San  Francisco,  18  Cal.  17  Mayor,   etc.,    R.    R.,    26    Pa.    St. 

590.  355;  R.  R.  v,  Litchfield,  23  How.  (U. 

l6Busch  V.  Donohue,  31  Mich.  480;       S.)  88. 
Rice  V.  R.  R.  Co.,  1  BL  358.  18  Coburn  v.  Ellenwood,  4  N.  H.  99. 


148  ABSTRACTS    OP    TITLE.  [§  140 

veyanees  on  the  credit  allorcled  by  the  entry.  This  caucolhition 
was  afterward  set  aside  by  special  act  of  Congress  and  the  claim 
of  Ponciii  confirmed,  with  a  further  direction  for  a  patent,  which 
was  subsequently  issued.  The  land  is  now  a  portion  of  the  city 
of  St.  Paul,  ]\Iinn.,  and  has  become  very  valuable.  As  the  incep- 
tion of  this  title  is  somewhat  complicated,  a  full  detail  of  all  the 
preliminary  steps  is  important,  and  the  abstract  in  this  case  should 
show :  the  original  entry  by  Poncin ;  the  subsequent  cancellation ; 
the  confirmatory  act  of  Congress;  and  finally  the  patent;  the 
mesne  conveyances  by  Poncin  taking  effect  by  relation.  Examples 
of  the  entry  have  been  given ;  the  confirmatory  act  would  appear 
much  as  follows : 


United  States^^ 


to 


Peter  Poncin. 


Act  of  Congress  entitled  "An  act 
authorizing  a  patent  to  he  issued  to 
Peter  Poncin  for  certain  lands  therein 
'described." 

Approved  July  27, 1854. 

Recorded  August  1, 1854.^^ 

Book  "C,"  page  560. 


Enacts,  That  the  entry  of  Peter  Poncin  of  the  north  half  of 
the  southeast  quarter,  and  the  south  half  of  the  northeast  quar- 
ter of  Section  36,  in  the  Stillwater  land  district,  Minnesota,  can- 
celed hy  the  Commissioner  of  the  General  Land  Office,  he  and 
same  is  herehy  alloived  and  reinstated  as  of  the  date  of  said  en- 
try, so  that  the  title  to  said  lands  may  inure  to  the  benefit  of  his 
grantees  as  far  as  he  may  have  conveyed  same;  Provided,  that 
the  purchase  money  shall  be  again  paid  at  said  land  office,  and 
that  thereupon  a  patent  shall  issue  in  the  name  of  said  Peter  Pon- 
cin for  said  lands. 

Further  enacts.  That  the  Superintendent  of  Puhlic  Schools  of 
Minnesota  be  and  he  is  authorized  to  select  other  land  in  lieu 
thereof. 

This  is  one  of  the  few  species  of  conveyance  that  the  examiner 
is  justified  in  placing  on  the  abstract  when  same  does  not  appear 
of  record  in  the  county  in  which  the  land  is  situated;  and  where 
the  records  are  silent,  reference  to  other  authentic  sources  of  in- 

19  If  desired,  this  may  read  ' '  Con-  20  These  acts  rarely  appear  of  rec- 

firmation  by  the  United  States,"  as  ord  in  the  county,  in  which  event  refer 

this   example  is,   strictly   speaking,   a  to   the  book   and  page   of   the  U.   S. 

confirmation  rather  than  a  grant.  Statutes. 


§  140]  CONGRESSIONAL   AND   LEGISLATIVE  GRANTS.  149 

formation  must  be  inserted  and  attention  drawn  to  the  fact  of 
non-registry.  This  is  accomplished  in  the  first  instance  by  referring 
to  the  volume  and  page  of  the  United  States  statutes,  and  in  the 
latter  by  a  foot-note,  as  follows: 

Note. — At  the  date  of  this  examination  the  foregoing  instrument 
is  not  of  record  in  Ramsey  county,  Minnesota. 

The  foregoing  example  belongs  to  a  class  of  private  and  local 
laws  technically  known  as  "relief"  acts,  of  which  vast  numbers 
have  been  passed  at  different  times  since  the  public  domain  has 
been  open  for  sale  and  settlement.  As  a  patent  usually  follows 
all  acts  of  this  character  the  necessity  of  exhibiting  them  is  not  so 
great  as  in  case  of  confirmations,  for  the  latter  not  only  serve  as 
"acts  of  relief,"  but  also  operate  as  grants  in  favor  of  the  con- 
firmees. An  abstract  of  a  confirmation  need  not  differ  materially 
from  the  example  last  shown,  the  main  object  being  to  present 
all  the  operative  parts  of  the  law,  but  should  the  examiner  desire 
a  choice  of  phraseology  in  the  arrangement  of  the  formal  parts  a 
further  illustration  is  herewith  given. 


''An  Act 
to 
''confirm  the  title  of 
"the  heirs  of  James 
"Sympson,  deceased, 
"to  a  certain  tract  of 
"land  in  the  State  of 
"Louisiana." 


Act  of  Congress,  entitled  as  in  the  margin. 
Approved,  Aug.  29, 1842,  Vol.  6,  page  869, 
U.  8.  Statutes  at  Large. 

Enacts  that  the  heirs  at  law  of  James 
'Sympson,  deceased,  late  of  Clarke  County, 
Kentucky,  be  and  they  are  hereby  confirmed 
in  their  title  to  a  certain  tract  of  land  sit- 
uated at  the  mouth  of  the  Atchafalaya,  at 
its  junction  with  the  Mississippi  Biver,  containing  640  acres;  and 
as  surveyed  and  platted  in  the  surveyor  general's  office  at  Donald- 
sonville,  in  the  State  of  Louisiana,  upon  the  survey  made  and  re- 
turned by  Charles  Morgan,  dated  February  11,  1806,  and  executed 
for  Andy  Robinson. 

Provided  (it  is  stated)  this  confirmation  shall  only  be  construed 
as  a  relinquishment  of  the  title  of  the  United  States  to  said  land, 
and  not  to  prejudice  any  superior  or  better  title. 


CHAPTER  XI 

PATENTS 

§  141.  Definition.  §  154.  Continued. 

§  149.  Patents      from      the  United       §  155.  Construction. 

States.  §  156.  Formal  requisites. 

§  150.  Validity.  §  157.  Patents  from  tlie  State. 

§  151.  Delivery.  §  158.  Continued. 

§  152.  General  Land  Office  record.  §  159.  Formal     requisites     of     State 

§  153.  Operation  and  effect.  patents. 

§  141.  Definition.  A  patent  has  been  defined  as  a  grant  of 
some  privilege,  property,  or  authority,  made  by  the  government 
or  sovereign  of  a  country  to  one  or  more  individuals,  and  the 
term,  as  originally  used  in  England,  is  said  to  have  signified  cer- 
tain written  instruments  emanating  from  the  king,  and  sealed 
with  the  great  seal.  These  instruments  conferred  grants  of  lands, 
honors  or  franchises,  and  were  called  letters  patent  from  being 
delivered  open,  and,  by  way  of  contradistinction  from  instruments 
like  the  French  Lettres  de  cachet,  which  went  out  sealed.^  In 
the  United  States,  the  word  is  used  to  denote  those  instruments 
which  secure  to  inventors,  for  a  limited  time,  the  exclusive  use 
of  their  inventions,  but  when  used  in  connection  with  real  prop- 
erty, it  means  the  title  deed  by  which  a  government,  either  State 
or  Federal,  conveys  its  lands. 

§  149.  Patents  from  the  United  States.  A  patent  of  the  United 
States  is  the  conveyance  by  which  the  Nation  passes  its  title  to 
the  public  domain  and  is  the  highest  evidence  of  derivative  title 
known  to  the  law;  it  is  conclusive  as  against  the  government,  and 
aU  persons  claiming  under  junior  patents  or  titles,^  until  set  aside 
or  annulled  by  some  competent  tribunal.^  When  delivered  to 
and  accepted  by  the  grantee,  it  passes  the  full  legal  title  to  the 
land,*  and  carries  with  it  the  presumption  that  all  the  prerequi- 

1  2  Bou.  Law  Diet.  298.  93 ;    Stoddard    v.    Chambers,    2    How. 

2  Hooper  v.  Young,  140  Cal.  274.  284. 

3  United  States  v.  Stone,  2  Wall.  4  Moore  v.  Robbins,  6  Otto,  530; 
525;    Strong  v.   Lehmer,   10  Ohio  St.  Leroy  v.  Jamison,  3  Sawyer,  369. 

150 


§  150]  PATENTS.  151 

sites  of  law  have  been  complied  with.^  But  the  patent  must  show 
upon  its  face  a  regular  issue,  and  a  full  compliance  with  the  for- 
malities of  law,  for  a  patent  forms  no  exception  to  the  rule,  that 
the  legal  title  to  lands  cannot  be  conveyed  except  in  the  form 
provided  by  law.^  The  principal  requisites  in  this  respect  have 
reference  mainly  to  execution  and  authentication.  To  conform 
strictly  to  the  letter  of  the  law,  the  patent  must  be  signed  in  the 
name  of  the  President,  either  by  himself  or  his  duly  appointed 
secretary,  sealed  wdth  the  seal  of  the  General  Land  Office,  and 
countersigned  by  the  Recorder.  Until  all  of  these  have  been  done, 
the  United  States  has  not  executed  a  patent  for  a  grant  of  lands. 
Each  and  every  one  of  the  integral  parts  of  the  execution  is  essen- 
tial to  the  perfection  of  the  patent.  They  are  of  equal  impor- 
tance under  the  law,  and  one  cannot  be  dispensed  with  more  than 
another.  Neither  is  directory,  but  all  are  mandatory,  and  neither 
the  signing  nor  the  sealing,  nor  the  countersigning,  can  be  omitted 
any  more  than  the  signing  or  the  sealing,  or  the  acknowledgement 
by  a  grantor,  or  the  attestation  by  witnesses,  when  by  statute  such 
forms  are  prescribed  for  the  due  execution  of  deeds  by  private 
parties  for  the  conveyance  of  lands.''^  Where,  however,  the  patent 
is  regular  upon  its  face,  then  a  presumption  arises  that  it  is  valid 
and  that  it  passes  title,  and  it  is,  of  itself,  prima  facie  evidence 
that  all  the  steps  prescribed  by  law  for  its  proper  issuance  have 
been  taken  before  it  was  executed.* 

§  150.  Validity.  The  primary  rules  which  control  the  validity 
of  patents  are  not  unlike  those  which  obtain  in  conveyances  be- 
tween individuals.  The  government  must  possess  title  to  that 
which  it  assumes  to  convey;  the  instrument  of  conveyance  must 
be  in  legal  form,  and  it  must  have  been  issued  by  competent  au- 
thority. Notwithstanding  a  patent  may  be  executed  in  due  form 
its  validity  may  yet  be  impeached,  and  at  all  times  it  is  subject 
to  inquiry  as  to  whether  the  officers  who  issued  it  had  authority 
to  make  a  conveyance,  or  whether  the  land  which  they  purported 
to  convey  was  within  their  control.  If  not,  then  the  patent  is  abso- 
lutely void  and  may  be  attacked  in  any  collateral  proceeding.® 

6  Sweat  V.  Corcoran,  37  Miss.  513 ;  7  McGarrahan  v.  Mining  Co.,  96  U. 

Hill  V.  Miller,  36  Mo.  182;   Collins  v.  S.  316. 

Bartlett,  44  Cal.  371;  Winter  v.  Crom-  8  Heinlen  v.  Heilbron,  97   Cal.   105. 

melin,  18  How.  87;  Stringer  v.  Young,  9  Cumniing.g  v.  Powell,  116  Mo.  473; 

3  Pet.  320.  Edwards  v.  Ralley,  96  Cal.  408;  Doo- 

6  McGarrahan  v.  New  Idria  Mining  Ian  v.  Carr,  ]25  U.  S.  625. 
Co.,  96  U.  S.  (6  Otto)  316. 


152  ABSTRACTS   OP   TITLE.  [§  150 

This  follows  from  the  fact  that  the  true  office  of  a  patent,  whether 
of  a  State  or  the  United  States,  is  to  pass  title  to  lands  in  prac- 
tically the  same  manner  as  the  deed  of  an  individual.  It  conveys 
to  the  patentee  all  the  interest  of  the  government,  whatever  it 
may  be,  and,  as  a  rule,  is  conclusive  between  them.  But  it  docs 
not  est-ablish  the  fact  that  the  government  possessed  title,^®  and 
hence  is  open  to  attack  collaterally,  the  same  as  any  other  muni- 
ment which  purports  to  convey  possessory  rights.^^  Thus,  it  may 
be  impeached,  and  its  operation  as  a  conveyance  defeated,  by 
showing  that  the  department  had  no  jurisdiction  to  dispose  of  the 
land ;  that  is,  that  the  law  did  not  provide  for  its  sale ;  or  that  it 
had  been  reserved  from  sale  or  dedicated  to  special  purposes;  or 
had  been  previously  transferred  to  others.  In  such  event  the 
patent  would  be  inoperative  to  pass  title,  and  objection  to  it  could 
be  taken  on  these  grounds  at  any  time  and  in  any  form  of  action.^'' 

§  151.  Delivery.  Unlike  conveyances  between  individuals,  a 
formal  delivery  of  a  patent  is  not  essential  to  its  validity,  nor 
will  non-delivery  thereof  defeat  the  grant.^^  The  importance 
attached  to  the  delivery  of  deeds  in  modern  conveyancing  arises 
largely  from  the  fact  that  a  deed  has  taken  the  place  of  the  ancient 
livery  of  seizin,  when,  in  order  to  give  effect  to  the  enfeoffment 
of  the  new  tenant,  the  act  of  delivering  possession  in  a  public 
and  notorious  manner  was  the  essential  evidence  of  the  investurc 
of  the  title  to  the  land.  This  became  gradually  diminished  in 
importance  until  the  manual  delivery  of  a  piece  of  the  turf,  and 
many  other  symbolical  acts,  became  sufficient.  When  all  this 
passed  away  and  the  creation  and  transfer  of  estates  in  land  by 
a  written  instrument,  called  the  act  or  deed  of  the  party,  became 
the  usual  mode,  the  instrument  was  at  first  delivered  on  the  land 
in  lieu  of  livery  of  seizin,^*  until  finallj'-  any  deliverj^  of  the  deed, 
or  any  act  which  the  party  intended  to  stand  for  such  delivery, 
became  effectual  to  pass  the  title,^^ 

10  Musser  v.  McEea,  38  Minn.  409.  of  a  local  oflS.ee  all  undelivered  patents 

11  "Winter  v.  Jones,  10  Ga.  190.  remaining  in  its  files  are  returned  to 

12  Steel  V.  St.  Louis  Smelting  Co.,  the  General  Land  Oflfice  wliere  they 
106  U.  S.  447.  are  assorted,  filed  and  preserved.    See 

13  It  is  the  practice  of  the  General  Rep.  General  Land  Office,  1875. 
Land   Office   to    transmit   patents,    as  14  Shop.   Touch.    64;    Coke  on  Litt. 
rapidly  as   completed,  to  the   various  266  b. 

local  offices  for  delivery  on  surrender  16  Church  v.  Gilman,  15  Wend.  656; 

of  the  duplicate  receipt  or  certificates.  Warren  v.  Levitt,  11  Foster  (N.  H.), 

Frequently,  however,  they  remain  un-  340;  Hatch  v.  Hatch,  9  Mass.  306, 
called  for,  and  on  the  discontinuance 


§  151]  PATENTS.  153 

No  livery  of  seizin,  however,  was  necessary  of  the  king's  grants, 
which  were  made  matters  of  record,  for  when  the  seal  was  affixed 
to  the  instrument  and  enrollment  of  it  was  made,  no  higher  evi- 
dence could  be  had,  nor  was  any  other  evidence  necessary  of 
this  act  or  deed  of  the  king.  Hence,  Mr.  Cruise  in  his  digest  says : 
"The  king's  letters  patent  need  no  delivery;  nor  his  patents  under 
the  great  seal  of  the  Duchy  of  Lancaster;  for  they  are  sufficiently 
authenticated  and  completed  by  the  annexing  of  the  respective 
seals  to  them."  In  like  manner  when  a  patent  for  public  lands 
has  been  made  out  and  signed  by  the  President,  the  seal  of  the 
United  States  affixed,  and  the  instrument  countersigned  by  the 
Recorder  of  the  Land  Office  and  duly  recorded  in  the  record  book 
kept  for  that  purpose,  it  becomes  a  solemn  public  act  of  the  gov- 
ernment of  the  United  States  and  needs  no  further  delivery  or 
other  authentication  to  make  it  perfect  and  valid.^^  When  this 
has  been  done  the  title  to  the  land  conveyed  passes  by  matter  of 
record  to  the  grantee,  and  delivery,  as  in  case  of  the  deeds  of  pri- 
vate individuals,  is  not  necessary  to  give  effect  to  the  granting 
clause  of  the  instrument.^' 

Theoretically,  in  order  that  the  patent  may  take  effect  as  a  con- 
veyance, it  is  essential  that  there  be  an  acceptance  on  the  part  of 
the  grantee,  but  the  acts  required  to  be  done  by  him  in  the  prepa- 
ration of  his  claim  are  equivalent  to  a  positive  demand  for  the 
patent,  and  where  the  patentee  does  not  expressly  dissent,  his 
assent  and  acceptance  are  always  presumed  from  the  beneficial 
nature  of  the  grant.^^ 

Some  confusion  has  arisen  as  to  the  time  when  a  patent  takes 
effect,  that  is,  when  it  becomes  operative  as  a  conveyance  and  bind- 
ing upon  both  parties,  from  not  distinguishing  between  acts  which 
bind  the  government  and  acts  which  bind  the  patentee.  No  one 
can  be  compelled  by  the  government,  any  more  than  by  an  indi- 
vidual, to  become  a  purchaser,  or  even  to  take  a  gift.  Nor  can 
the  burdens  or  advantages  of  property  be  thrust  upon  him  with- 
out his  assent,  and  the  patent  of  government,  like  the  deed  of  a 
private  person,  must,  in  order  to  take  effect  as  a  conveyance  and 
transfer  title,  be  accepted  by  the  grantee;  yet,  as  we  have  seen, 
the  possession  of  property  is  so  universally  considered  a  benefit, 
that,  in  the  absence  of  express  dissent,  an  acceptance  is  presumed 

16  Gilmore  v.  Sapp,  100  111.  297.  18  Pierre  Mutelle  ease,  3  Op.  Att  'y 

17  United  States  v.  Schurz,  102  U.  Gen.  654;  LeRoy  v.  Jamison,  3  Saw. 
S.    378;    LeRoy    v.    Jamison,    3    Saw.       (C.  Ct.)   369. 

369;  Houghton  v.  Hardenberg,  53  Cal. 
181. 


154  ABSTR.VCTS   OP   TITLE.  [§  151 

whenever  the  conveyance  is  placed  in  condition  for  acceptance, 
and  this  occurs  when  the  last  formalities  required  by  law  of  the 
officers  of  the  government  are  complied  with.  By  the  execution, 
sealing  and  recording,  open  and  public  declaration  is  made  that, 
so  far  as  the  government  is  concerned,  the  title  to  the  premises 
has  been  transferred  to  the  grantee.  The  record  stands  in  place 
of  the  oli'er  for  delivery  in  the  case  of  a  private  deed ;  and  the 
instrument  is  thenceforth  held  for  the  grantee,  who  takes  by  mat- 
ter of  record.^® 

§  152.  General  Land  Office  Record.  Patents  do  not  come  with- 
in the  provisions  of  the  recording  laws  of  the  State,  where  the 
terms  of  the  statute  do  not  specifically  include  thcm,^"  though  it 
is  usual  to  record  them  in  the  county  where  the  land  is  situate, 
and  such  registration,  as  a  rule,  is  expressly  permitted  by  statute. 
The  act  for  the  establishment  of  a  General  Land  Office  provides 
that  all  patents  issuing  therefrom  "shall  be  recorded  in  said  office 
in  books  to  be  kept  for  the  purpose,"  and  the  indorsement  of  such 
record  will  always  be  found  upon  the  patent.  This  indorsement 
should  alwaj's  be  copied  by  the  recording  officer  when  presented 
for  local  registration,  and  a  minute  of  same  made  by  the  examiner 
when  preparing  the  abstract.  Direct  and  easy  reference  is  thus 
made  to  the  highest  source  of  information  in  case  of  the  mutila- 
tion, loss  or  destruction  of  the  original,  though,  of  course,  recourse 
may  be  had  to  it  in  other  ways.  This  original  record  is  not  in 
itself  a  grant  of  title,  but  it  is  an  evidence  of  equal  dignity  with 
the  patent,  because,  like  the  patent,  it  shows  that  a  grant  has  been 
made. 

The  record  called  for  by  act  of  Congress  is  made  by  copying 
the  patent  to  be  issued  into  the  book  kept  for  that  purpose,  and 
such  record,  as  a  matter  of  evidence,  stands  in  the  same  position 
and  has  the  same  effect  as  the  instrument  of  which  it  purports 
to  be  a  copy.2^  The  public  records  of  the  departments  of  the 
government  are  not,  like  those  kept  pursuant  to  ordinary  regis- 
tration laws,  intended  for  notice,  but  for  preservation  of  the  evi- 
dence of  the  transactions  of  the  department.  Where  the  county 
records  fail  to  show  a  patent,  and  no  other  divesture  of  govern- 
mental title  appears,  recourse  should  be  had  to  the  General  Land 

19  LeKoy    v.    Jamison,    3    Saw.    (G.  21  MeGarrahan   v.    New   Idria    Min- 

Ct.)  369;  Green  V.  Liter,  8  Cranch  (U.      ing  Co.,  6  Otto,  316;   Sands  v.  Davis, 
S.),   247;    Gilmore   v.    Sapp,    100    111.      40  Mich.  14. 
297. 

20Moran  v.  Palmer,  13  Mich.  367; 
Curtis  V.  Hunting,  6  Iowa,  536. 


§  153]  PATENTS.  155 

OflSce,  and  the  claimant's  title  will  be  determined,  in  the  absence 
of  other  circumstances,  by  what  is  there  shown. 

The  failure  to  record  the  patent  does  not  defeat  the  ^ant,  but 
merely  takes  from  the  party  one  of  the  means  of  making  his  proof. 
If  the  patent  itself  can  still  be  produced,  and  it  is  duly  executed 
with  all  the  formalities  required  by  law,  the  patentee  and  his 
grantees  may  still  maintain  their  rights  under  it,  A  perfect  patent 
proves  the  grant,  but  a  perfect  record  of  an  imperfect  patent  or 
an  imperfect  record  of  a  perfect  patent  has  no  such  effect.  In 
such  latter  case,  if  a  perfect  patent  has  in  fact  issued,  it  must 
be  proved  in  some  other  way  than  by  the  record.  The  record  of 
the  patent,  analogous  to  the  doctrine  of  registration  under  State 
laws,  is  treated  as  presumptive  evidence  of  its  delivery  to  and 
acceptance  by  the  grantee.^^ 

§  153.  Operation  and  Effect.  A  patent  is  a  complete  appropria- 
tion of  the  land  it  describes,^'  and  passes  to  the  patentee  all 
the  interest  of  the  United  States,  whatever  it  may  be,  in  everything 
connected  with  the  soil,  or  forming  any  portion  of  its  bed,  or  fixed 
to  its  surface;  in  short,  in  everything  embraced  within  the  term 
"land."^*  It  is  conclusive  evidence  of  the  right  of  the  patentee 
to  the  land  described  therein,  not  only  as  between  himself  and  the 

22  McGarrahan  v.  New  Idria  Mining  cious  metals  belong  to  the  second  class. 
Co.,   6  Otto,  316;    LeRoy  v.  Jamison,      Moore  v.  Snow,  17  Cal.  199. 

3  Sawyer,  369.  While  mines  of  the  precious  metals 

23  Stringer 's  Lessee  v.  Young,  3  Pet.  were  known  to  exist  for  many  years 
320.  it  was  not  until  1866  that  the  govern- 

24  Fremont  v.  Flower,  17  Cal.  199.  ment  took  cognizance  of  such  deposits 
According  to  the  common  law  of  Eng-  on  the  public  lands.  In  that  year 
land,  mines  of  gold  and  silver  were  mineral  lands  on  the  public  domain 
the  exclusive  property  of  the  crown,  were  opened  for  exploration  and  lo- 
and  did  not  pass  in  a  grant  of  the  cation  of  mines.  This  act  remained 
king  under  a  general  designation  of  in  force  until  May  10,  1872,  when  it 
lands  or  mines.  It  has  sometimes  was  repealed  by  an  act  providing  for 
been  asserted  that  this  prerogative  the  purchase  of  mineral  lands  under 
right  passed  to  or  was  inherent  in  the  certain  regulations  therein  prescribed. 
States,  but  this  is  an  error.  The  jura  This  act  would  seem  to  be  still  in 
relgalia  which  pertained  to  the  king  force.  See,  U.  S.  Comp.  Stat.  1901,  p. 
at  common  law,  comprehended  not  1424.  Locations  of  mining  claims  can 
only  those  rights  which  relate  to  the  be  made  only  on  unoccupied,  unappro- 
political  character  and  authority  of  the  priated  lands  of  the  public  domain, 
sovereign,  but  also  those  which  are  in-  The  ownership  of  minerals  con- 
cidental  to  his  regal  dignity,  and  may  tained  in  public  lands,  when  patented 
be  severed  at  pleasure  from  the  crown  to  an  individual,  passes  under  the 
and  vested  in  the  subject.  It  is  only  patent  and  cannot  be  subjected  to  lo- 
to  the  rights  of  the  first  class  thnt  tlio  cation  under  mining  laws.  Freemonb 
States  by  virtue  of  their  sovereignty  v.  Seals,  18  Cal.  434;  Pac.  Coast  M. 
are   entitled,    and   mines    of   the  pre-  &   M.   Co.   v.   Sprago,  8   Sawyer,  645, 


156  ABSTR.\CTS   OP   TITLE.  [§  153 

government,  but  as  between  himself  and  a  third  person,  who  has 
not  a  superior  title  from  a  source  of  paramount  proprietorship.** 

When  issued  to  a  confirmee  of  a  foreign  grant,  a  patent  operates 
like  the  deed  of  any  other  grantor,  and  passes  only  such  interest 
as  the  government  possessed,  the  deed  taking  effect  by  relation 
from  the  initiation  of  the  series  of  proceedings  for  confirmation 
and  of  which  it  forms  the  last  act.*^  But  as  the  record  of  the 
government  of  the  existence  and  validity  of  the  grant,  it  establishes 
the  title  of  the  patentee  from  the  date  of  the  grant,  such  title  de- 
pending, up  to  the  issuance  of  the  patent,  upon  the  character  of 
the  grant  and  the  proceedings  of  the  former  government  in  refer- 
ence to  it.*'  As  such  record,  with  respect  to  the  title  of  the  pat- 
entee existing  at  the  date  of  the  cession  of  the  foreign  territory, 
it  is  conclusive  evidence  of  title  in  the  patentee  at  the  time  the 
jurisdiction  of  the  subject  passed  from  the  foreign  government  to 
the  United  States.**  It  is  the  evidence  which  the  government 
furnishes  the  claimant  of  its  action  respecting  his  title.  By  it  the 
sovereign  power,  which  alone  could  determine  the  matter,  declares 
that  the  previous  grant  w^as  genuine ;  that  the  claim  under  it  was 
valid,  and  entitled  to  recognition  and  confirmation  by  the  law 
of  nations  and  the  stipulations  of  the  treaty;  and  that  the  grant 
was  located,  or  might  have  been  located,  by  the  former  govern- 
ment, and  is  correctly  located  by  the  new  government,  so  as  to 
embrace  the  premises  as  they  are  surveyed  and  described.*®  A 
patent  issued  on  a  confirmed  foreign  grant,  is,  therefore,  in  the 
nature  of  a  conveyance  by  way  of  quit-claim.  It  is  conclusive  only 
as  between  the  parties  thereto,  and  is  evidence  that  as  against  the 
United  States,  the  validity  of  the  grant  has  been  established.^® 

§154.  Continued.  The  Government  of  the  United  States  has 
a  perfect  title  to  the  public  land  and  an  absolute  and  unqualified 
right  of  disposal.  Neither  State  nor  territorial  legislation  can  in 
any  manner  modify  or  affect  the  right  which  the  government  has 
to  a  primary  disposal ;  nor  can  such  legislation  deprive  the  gran- 
tees of  the  United  States  of  the  possession  and  enjoyment  of  the 
property  by  reason  of  any  delay  in  the  transfer  of  the  title  after 
the  initiation  of  proceedings  for  its  acquisition.^^     Whether  the 

16   Fed.  348;    Cowell  v.   Lammers,  10  28  Leese  v.   Clark,   20   Cal.   387. 

Sawyer,  246,  21  Fed.  200.  29  Leese  v.   Clark,  20  Cal.   387. 

26  Waterman  v.  Smith.  13  Cal.  373.  30  Adam  v.  Norris,  103  U.  S.  591. 
26Yount    V.    Howell,    14    Cal.    465;  81  Union  Mill,  etc.,   Co.  v.   Ferriss, 

Leese  v.  Clark,  18  Cal.  535.  2  Sawyer,  176;  Gibson  v.  Chouteau,  13 

27  Teschemacher    v.    Thompson,    18      "Wall.  92. 
Cal.  11. 


§  155]  PATENTS.  157 

title  to  a  portion  of  the  public  lands  has  passed  from  the  United 
States  depends  exclusively  upon  the  laws  of  the  United  States; 
when  it  has  passed,  it  then  becomes  subject  to  State  laws,^^  These 
statements  acquire  additional  importance  from  the  fact  that  in  a 
majority  of  the  Western  States  the  entry  has,  for  many  years, 
been  recognized  as  the  basis  of  a  legal  title,  and  in  actions  of  eject- 
ment has  frequently  been  received  as  such;  but  in  the  federal 
courts  the  patent  is  held  to  be  the  foundation  of  title  at  law,  and 
neither  party  can  bring  his  entry  before  the  court.^' 

A  purchaser  from  one  holding  under  a  patent  is  not  bound  to 
look  behind  the  patent  to  learn  if  it  was  properly  issued  to  the 
one  entitled  to  it,^*  for  the  instrument  is  in  itself  presumptive 
evidence  that  all  prior  proceedings  are  legal,^^  but  every  purchaser 
is  presumed  to  have  notice  of  any  defect  of  title  apparent  upon  its 
face,^^  and  is  chargeable  with  notice  of  whatever  the  patent  re- 
cites.^'' 

A  patent  issued  to  a  fictitious  person  is  a  nullity,^*  as  is  also 
a  patent  issued  to  a  person  deceased,^^  but  the  heirs  of  a  deceased 
person  will  take  a  valid  title  to  the  land  so  conveyed  to  a  deceased 
ancestor  *"  under  special  acts  of  Congress.** 

§  155.  Construction.  It  is  a  rule  of  construction  generally  ap- 
plicable to  public  grants,  that  such  grants  are  to  be  construed 
most  favorably  to  the  public  and  most  strongly  against  the  grantee ; 
that  nothing  passes  by  such  grants  except  what  is  expressed  in 
unequivocal  language,  and  that  whatever  is  not  unequivocally 
granted  is  deemed  to  be  withheld,  nothing  passing  by  implication. 
In  late  cases,  however,  it  has  been  held,  that  this  rule  does  not 
apply,  at  least  to  its  full  extent,  to  grants  made  upon  adequate 
valuable  considerations,  but  refers  rather  to  gratuitous  grants  made 
by  the  sovereign  upon  the  solicitation  of  the  grantees.*^ 

82  Wilcox  V.  Jackson,  13  Pet.  498.  40  Galloway  v.   Finley,   12   Pet.    (U. 

SSMcArtliur  v.  Browder,  4  Wheat,  S.)  264. 

488;  Fenn  v.  Holmes,  21  How.  481.  *l  In  1836  Congress  passed  an  act 

34  Sehnee  v.  Schnee,  23  Wis.  377.  to  give  effect  to  patents  issued  in  the 

35  Barry  v.  Gamble,  8  Mo.  88 ;  Win-  name  of  deceased  persons  which  pro- 
ter  V.  Crommelin,  18  How.  87;  Strin-  vides,  that  the  title  to  the  land  desig- 
ger  V.  Young,  3  Pet.  320.  nated   in   such   patents  shall   inure   to 

36  Bell  V.  Duncan,  11  Ohio,  192.  and   become  vested   in  the  heirs,   de- 

37  United  States  v.  Land  Grant  Co.,  visees  or  assignees  of  such  deceased 
21  Fed.  Pep.  19.  persons  as  if  the  patent  had  been  is- 

38  Thomas  v.  Wyatt,  25  Mo.  24.  sued    to   the    deceased    person   during 

39  Gait  V.  Galloway,  4  Pet.  (U.  S.)  life. 

345;  McDonald  v.  Smalley,  6  Pet.  (U.  42  Langdon  v.  New  York,  93  N.  Y. 

g  \  261.  129;  Charles  River  Bridge  v.  Warren 


158  ABSTRACTS   OP   TITLE.  [§  155 

But  little  room  for  construction  will  ordinarily  be  found  in 
patents,  and  when  rules  of  construction  are  invoked  it  is  usually 
to  determine  matters  relating:  to  description.  In  such  cases  it  has 
been  held  that  the  entire  description  of  the  lands  given  in  the 
patent  must  be  taken  together,  and  the  identity  of  the  land  ascer- 
tained by  a  reasonable  construction  of  the  language  used.  If, 
however,  there  be  a  repugnant  call,  which,  by  other  calls  of  the 
patent,  clearly  appears  to  have  been  made  through  mistake,  the 
patent  will  still  be  valid  and  the  ambiguity  or  doubt  which  may 
arise  may  be  explained  in  the  same  manner  and  under  the  same 
rules  that  obtain  between  private  grantors  and  grantees.*^ 

§  156.  Formal  Requisites.  As  has  been  seen,  less  formality  is 
required  in  grants  from  the  sovereign  than  in  deeds  between  in- 
dividuals, the  main  essentials  having  reference  to  the  facts  of 
execution.  The  instrument  usually  consists  of  an  acknowledgment 
of  payment  for  the  land  granted,  and  a  conveyance  thereof  by  a 
description  conforming  to  the  terms  of  the  government  survey. 
This,  with  the  execution,  is  all  that  is  found  in  the  average  patent, 
particularly  when  issued  to  a  purchaser  in  the  regular  course  of 
disposition  according  to  prescribed  legal  formulas.  The  abstract 
of  such  an  instrument  is  as  simple  as  the  original,  and  would  cover 
all  the  essential  points  if  made  as  follows : 


United  States 

to 

Francis  W.  Walker. 


Patent. 

Certificate,  No.  520. 
Dated  F  el.  1,1860. 
Recorded  Feb.  25,  1888. 
Booh  15,  page  90. 


Grants,  The  Northeast  quarter  of  Section  ten.  Town  tivo  North, 
Range  tiventy-three.  East  of  3d  P.  M..  Milwankee  Land  District. 
General  Land  Office,  record  100,520. 

Where  the  patent  is  issued  in  pursuance  of  a  confirmation  or 
aot  of  Congress,  the  matter  of  inducement  will  usually  be  found 
immediately  preceding  the  granting  clause,  and  in  such  case  a  brief 

Bridge,  7  Pick.  (Mass.)  344.    The  rea-  jiass  from  the  sovereign  by  reason  of 

son    generally    given   for   the   rule    is,  the  uncertainty. 

that  in  a  grant  proceeding  from  the  43  Boardnian    v.    Reed,    6    Pet.    (U. 

application  of  the  subject,  the  grantee  S.)   328;   McTver  v.  "Walker,  9  Cranch 

ought  to  know  what  he  asks,   and   if  (U.   S.),  173, 

that    does   not   appear,    nothing   shall 


§  157]  PATENTS.  159 

recital  should  be  made  in  the  abstract  setting  out  the  substance  or 
purport  of  the  matter  of  inducement.  This  will  always  be  the  ease 
where  a  patent  is  issued  directly  to  the  state.  A  familiar  example 
will  be  found  in  swamp  land  gi-ants.  The  patent,  in  such  cases, 
recites  the  act  of  grant  and  the  fact  of  selection,  and  these  mat- 
ters should  be  briefly  noticed  in  preparing  the  abstract. 

It  wiU  often  happen  that  a  patent  has  been  duly  issued  and  de- 
livered to  the  patentee,  but  through  neglect  has  not  been  placed 
on  record  in  the  registry  of  deeds  of  the  county  where  the  land  is 
situate.  To  remedy  the  defect  of  title  thus  produced,  where  the 
original  document  cannot  be  found,  it  is  customary  to  procure  an 
exemplification  of  the  General  Land  Office  record  and  this,  when 
recorded,  practically  takes  the  place  of  the  original  patent.  In 
abstracting  such  instruments  the  commissioner's  certificate  should 
always  be  shown,  and  this  may  be  done,  substantially,  as  follows : 

Appended  is; 

A  ce7'tificate,  dated  Dec.  2,  1887,  h\j  J  no.  M.  Brown,  Commis- 
sioner of  the  General  Land  Office,  Washington,  D.  C,  under  the 
seal  of  the  said  office,  that  the  "annexed"  copy  of  Patent  to  Fran- 
cis W.  Walker,  founded  on  Milwaukee,  Wis.,  cash  entry  No.  520, 
is  a  true  and  literal  exemplification  from  the  records  of  "this 
office." 

§157.  Patents  from  the  State.  The  lands  belonging  to  the 
State  are  distinguishable  into  two  general  classes:  1st.  Those 
which  it  owns  by  virtue  of  grants  from  the  United  States.  2d. 
Those  which  it  owns  by  reason  of  its  sovereignty.  The  original 
Thirteen  States  and  Texas  entered  the  Union  as  landed  proprie- 
tors. In  the  remaining  States,  with  but  a  few  exceptions,  as  Ver- 
mont, whose  territory  was  claimed  by  New  York  and  New  Hamp- 
shire, etc.,**  the  original  title  to  the  soil  was  in  the  general  govern- 

44  Kentucky   was   part  of  Virginia,  than    150    miles    square,    or    as    near 

Tennessee     of     North     Carolina,     and  thereto   as   circumstances   will   admit; 

Maine  was  claimed  by  Massachusetts.  and  that   the   States   so   formed   shall 

The  territory  "northwest  of  the  river  be    republican    States    and    admitted 

Ohio"  was  originally  claimed  by  Vir-  members  of  the   Federal  Union,   hav- 

ginia,  and  was  conveyed  to  the  United  ing    the    same    rights   of    sovereignty, 

States  by  the  deed  of  cession  of  March  freedom     and     independence     as     the 

1,  1784,  as  a  common  fund  for  the  use  other    States."      The   State    of   Geor- 

and  benefit  of  all  the  States,  "upon  gia,  by  deed  of   cession,  dated  April 

condition  that   the  territory  so  ceded  24,    1802,    substantially    the    same    as 

shall    be    laid    out    and    formed    into  the    Virginia    cession,    conveyed    the 

States,  containing  a  suitable  extent  of  territory    forming    the    present    State 

territory,  not  less  than  100,  nor  more  of  Alabama.    The  remaining  territory 


160  ABSTRACTS   OP   TITLE.  [§  157 

ment.  The  States  entering  the  Union  as  sovereign  proprietors, 
claim  original  and  ultimate  title  in  all  their  lands,  while  the  class 
of  lands,  in  States  formed  from  the  territories,  belonging  to  the 
State  by  reason  of  its  sovereignty^  includes  only  the  shores  of  the 
sea,  and  of  its  bays  and  inlets.  Such  lands,  called  "marsh"  or 
"tide"  lands  are  such  as  are  covered  and  uncovered  by  the  ebb 
and  flow  of  the  tide,  but  are  susceptible  of  reclamation  so  as  to 
be  made  valuable  for  agricultural  or  other  purposes.*^  This  doc- 
trine of  title  by  sovereignty  also  prevails  in  some  of  the  inland 
States,  and  is  applied  to  the  submerged  lands  covered  by  navi- 
gable lakes  and  streams  upon  the  borders  and  within  the  boundaries 
of  the  State.*« 

The  State  can  make  no  disposition  of  the  lands  it  holds  by  vir- 
tue of  its  sovereignty  prejudicial  to  the  rights  of  the  public  to 
use  them  for  navigation  and  fishery,  but  it  may  dispose  of  them 
for  the  purpose  of  promoting  the  interests  of  navigation,  or  of 
reclaiming  them  from  the  sea,  where  it  can  be  done  without  preju- 
dice to  the  public  right  of  navigation.^"^ 

The  title  to  lands  under  the  tide  waters  within  the  realm  of 
England  was  by  the  common  law  deemed  to  be  vested  in  the  king 
as  a  public  trust  to  subserve  and  protect  the  public  right  to  use 
them  as  common  highways  for  commerce,  trade  and  intercourse. 
The  king,  by  virtue  of  his  proprietary  interest,  could  grant  the 
soil  so  that  it  should  become  private  property,  but  his  grant  was 
subject  to  the  paramount  right  of  public  use,  which  he  could  neither 
destroy  nor  abridge.  The  laws  of  most  nations  have  sedulously 
guarded  the  public  use  of  the  navigable  waters  within  their  lim- 

wa3  acquired  by  purchase  and  con-  dominion  of  her  navigable  waters  and 
quest.  The  cessions  of  Georgia  and  the  soil  under  them.  See  Pollard  v. 
Virginia  were  accepted  by  the  United  Hagan,  3  How.  (U.  S.)  212;  Freed- 
States,  and  the  municipal  eminent  man  v.  Goodwin,  1  McAlister,  142; 
domain  held  as  a  trust  for  the  new  Ward  v.  Mulford,  32  Gal.  365;  Far- 
States  to  be  formed  in  conformity  rish  v.  Coon,  40  Gal.  33;  Barney  v. 
to  the  deeds  of  cession,  the  details  Keokuk,  94  U.  S.  336;  Shively  v. 
to  be  regulated  by  the  act  of  Con-  Parker,  9  Or.  504. 
gress  known  as  the  ordinance  of  45  People  v.  Morrill,  26  Gal.  336; 
1787.  Upon  the  admission  of  the  Ward  v.  Mulford,  32  Cal.  365; 
new  States  nothing  remained  to  the  Simpson  v.  Neil,  80  Pa.  St.  183; 
United  States,  according  to  the  terms  Coburn  v.  Ames,  52  Gal.  385;  Hin- 
of  the  agreement,  but  the  public  man  v.  Warren,  6  Oreg.  408;  Pol- 
lands,  and  upon  their  disposal  the  lard  v.  Hagan,  3  How.  (U.  S.)  212. 
power  of  the  general  government  over  46  Musser  v.  Hershey,  42  Iowa,  356; 
these  lands,  as  property,  also  ceased,  Barney  v.  Keokuk,  94  U.  S.  324; 
leaving  the  State  in  undisputed  sov-  Benson  v.  Morrow,  61  Mo.  345. 
ereignty,  including  the  ownership  and  47  Ward    v.    Mulford,    32    Cal.    365. 


§  158]  PATENTS.  161 

its  against  infringement,  subjecting  it  only  to  such  regulation  by 
the  State,  in  the  interest  of  the  public,  as  it  deemed  consistent 
with  the  preservation  of  the  public  right.*^  The  title  to  lands 
under  tide  waters  in  this  country,  which  before  the  Revolution 
was  vested  in  the  king,  became,  upon  separation  of  the  colonies, 
vested  in  the  States  within  which  the  lands  are  situated.  The  peo- 
ple of  the  State,  in  right  of  sovereignty,  succeeded  to  the  royal 
title,  and  through  the  Legislature  may  exercise  the  same  powers, 
which,  previously  to  the  Revolution,  could  have  been  exercised  by 
the  king  alone,  or  by  him  in  conjunction  with  parliament,  subject 
only  to  those  restrictions  which  have  been  imposed  by  the  Consti- 
tution of  the  State  and  of  the  United  States.*®  A  modified  form  of 
this  doctrine  has  been  adopted  by  States  adjacent  to  the  great 
lakes. 

§  158.  State  Patents — Continued.  It  will  be  seen,  therefore, 
that  in  the  Colonial  States,  as  well  as  in  the  State  of  Texas,  the 
original  and  paramount  source  of  title  is  the  State.  In  all  the 
States  formed  from  national  territory,  except  as  the  sovereign  pre- 
rogative above  mentioned  has  been  asserted,  the  patent  from  the 
State  is  only  a  mesne  conveyance  of  an  older  and  pre-existent  title, 
depending  for  its  validity  upon  the  preliminary  steps  by  which 
the  State  acquired  ownership  to  the  soil.  In  tide  water  States, 
notably  Alabama,  California  and  Oregon,  where  the  doctrine  of 
original  title  by  virtue  of  sovereignty  has  been  strongly  asserted, 
a  State  patent  or  grant  may,  in  some  cases,  form  the  foundation 
of  an  unassailable  title;  but  in  the  interior  as  well  as  in  States 
bordering  on  the  great  lakes,  where  no  perceptible  tide  is  found, 
the  State  while  exercising  dominion  over  its  water  ways,  has 
usually  conceded  the  ownership  in  the  soil  covered  thereby  to  the 
adjacent  riparian  proprietor,  who  would  hold,  whatever  might  be 
the  mesne  conveyances,  from  the  United  States  in  virtue  of  the 
original  divesture  by  patent,  grant,  or  otherwise.  The  rule,  in  this 
respect,  is  not  uniform,  however,  and  in  some  of  the  States  border- 
ing on  the  great  lakes,  as  in  Illinois,  while  title  to  the  bed  of  streams 
is  conceded  to  the  owners  of  the  banks,  the  land  under  the  waters 
of  the  lakes  is  held  by  the  State  and  the  title  of  the  riparian  pro- 
prietor stops  at  the  shore.^^ 

48  Andrews,  J.,  in  People  v.  Ferry  60  See,  People  v.  Lincoln  Park 
Co.,  68  N.  Y.  71.                                            Comr.,   162   IlL   138. 

49  Lansing  v.   Smith,  4  Wend.   9. 

Warvelle  Abstracts — 11 


162  ABSTR.\CTS   OP   TITLE.  [§  159 

§  159.  Formal  Requisites  of  State  Patents.  The  formalities  to 
be  observed  in  patents  emanating  from  the  State  have  reference  to 
the  statutory  requisites  relative  to  issuance  and  execution,  and 
while  the  instruments  closely  follow  the  forms  adopted  by  the 
national  government,  minor  differences  of  detail  will  yet  be  found, 
varying  with  the  locality.  Ordinarily  a  State  patent,  in  analogy 
to  those  issued  by  the  general  government,  is  under  the  hand  of 
the  chief  magistrate,  and  authenticated  by  the  great  seal.  Such 
a  course  is,  however,  by  no  means  uniform,  the  statute  often  pre- 
scribing other  and  different  formalities.  Thus,  in  Wisconsin,  the 
commissioners  of  school  and  university  lands  are  alone  authorized 
to  convey  such  lands,  and  that  power  can  not  be  transferred  to 
others;  hence  a  patent  issued  by  the  Governor  and  Secretary  of 
State,  although  in  conformity  to  the  general  statute  regulating 
patents,  would  be  void  and  inoperative  to  pass  the  title  to  that 
particular  class  of  lands.^^  Thus  it  will  be  seen  that  in  State,  as 
in  national  patents,  the  execution,  according  to  prescribed  regula- 
tions, is  after  all  the  main  point  of  inspection  in  abstracting  these 
documents. 

61  McCabee  v.  Mazzuchelli,  13  Wis. 

478. 


CHAPTER  XII. 


SURVEYS,  PLATS  AND  SUBDIVISIONS. 


§  160.     General  remarks, 
§  161,     Division    of    the    public    do- 
main. 
§  163.     Subdivision   of   sections. 
§  164,     Rectangular   surveying. 
§  165.     Meander  lines. 


§  166.  Plats    and    subdivisions. 

§  167.  Formal  requisites. 

§  168.  Effect   of  registration. 

§  169.  Vacation    and    caneellation. 

§  170.  Dedication  hy  plat, 

§  171.  Ee-surveys. 


§  160.  General  Remarks,  A  fair  knov^^ledge  of  the  principles 
of  surveying  is  indispensable  to  good  work  on  the  part  of  both 
examiner  and  counsel.  In  tracing  devious  paths  and  intricate  wind- 
ings of  the  title  through  the  media  of  uncertain,  ambiguous  or 
faulty  descriptions,  as  well  as  where,  by  minute  subdivisions,  and 
irregular  shaped  parcels,  the  proper  location  of  the  land  becomes 
a  matter  of  careful  measurement  or  calculation,  this  knowledge  will 
be  found  of  the  utmost  importance.  A  knowledge  of  the  govern- 
mental divisions  of  the  county  is  also  necessary  to  intelligent  in- 
quiry, and  the  same  is  generally  true  of  subsequent  subdivision 
either  by  public  authority,  as  ease  of  town  plats,  or  subdivisions 
by  individuals.  Where  the  examination  is  complicated  by  ques- 
tions arising  from  description,  counsel  should  first  familiarize  him- 
self with  the  relative  position  of  the  land,  and,  when  the  examiner 
has  furnished  no  plats,  can  greatly  facilitate  his  labors  by  the  use 
of  sketch  maps  prepared  by  himself. 

§161.  Divisions  of  the  Public  Domain.  The  public  lands  of 
the  United  States  are  ordinarily  surveyed  into  rectangular  tracts 
bounded  by  lines  conforming  to  the  cardinal  points,  according  to 
the  true  meridian.^     The  largest  of  these  divisions,  called  a  town- 


1  This  system, 
American  in  all 
ported  from  a 
gress  May  7th, 
ferson  was  the 
committee,  and 
of  its  invention 
but  beyond  the 
its  origin  is  not 


which  is  essentially 
its  details,  was  re- 
committee    of    Con- 

1784.     Thomas   Jef- 

chairman     of     this 

to    him    the     credit 

is  usually  accorded, 
committee 's    report, 

positively  known.    It 


is  thought  the  square  form  of  States, 
provided  in  Virginia's  deed  of  ces- 
sion of  her  western  territory,  may 
have  influenced  Mr.  Jefferson  in  favor 
of  a  square  form  of  surveys,  although 
in  the  colony  of  Georgia  a  square 
form  of  surveying  had  been  in  vogue 
in  eleven  townships  for  fifty  years 
prior  thereto. 


163 


164  ABSTR.\CTS   OP   TITLE.  [§  161 

shnp,  is  a  body  six  inil<?s  square,  having  reference  to  an  established 
l)rincipal  base  line  on  a  true  parallel  of  latitude,  and  to  a  longitude 
st^'led  a  principal  meridian,  and  contains,  as  near  as  may  be,  23,040 
acres.  The  townships  are  subdivided  into  thirty-six  tracts,  each 
one  mile  square,  called  sections,  and  containing,  as  near  as  may  be, 
640  acres.  The  division  is  accomplished  by  running  through  the 
township,  each  way,  parallel  lines  at  the  end  of  every  mile.  Any 
number  or  series  of  contiguous  townships  situate  north  or  south 
of  each  other  constitute  a  range. 

As  it  is  impossible  to  strictly  follow  the  letter  of  the  law  in 
regard  to  the  public  surveys,  owing  to  the  convergency  of  the 
meridians,  an  inequality  develops,  increasing  as  the  latitude  grows 
higher.  The  excess  or  deficiency  is  added  to  or  deducted  from  the 
western  or  northern  ranges  of  sections  or  half  sections  in  each 
township  according  as  the  error  may  be  in  running  the  line  from 
east  to  west  or  from  south  to  north.  To  obviate,  in  some  measure, 
the  errors  that  otherwise  would  result  from  the  convergency  of 
meridians,  standard  parallels,  or,  as  they  are  usually  termed,  "cor- 
rection lines,"  are  established  at  stated  intervals,^  while  what  are 
known  as  "guide  meridians"  are  also  surveyed  at  regular  dis- 
tances.^ 

The  townships  bear  numbers  in  respect  to  the  base  line,  either 
north  or  south  of  it,  and  the  ranges  bear  numbers  in  respect  to  the 
meridian  line  according  to  their  relative  position  to  it  either  east 
or  west. 

The  sections  are  the  smallest  tracts,  the  out  boundaries  of  which 
the  law  requires  to  be  actually  surveyed.  Their  minor  subdivisions 
are  defined  by  law  and  are  designated  by  imaginary  lines  dividing 
the  sections  into  four  quarters  of  160  acres  each,  and  these  in  turn 
into  quarter-quarter  sections,  of  40  acres  each.  The  thirty-six  sec- 
lions  into  which  a  township  is  subdivided  are  numbered  consecu- 
tively commencing  with  section  one  at  the  northeast  angle  and 
proceeding  west  to  section  six;  thence  proceeding  east  the  sections 
number  to  twelve  and  so  on  alternately  until  the  number  thirty- 
six  in  the  southeast  angle.*    The  accompanying  diagram  will  serve 

2  Correction  lines  are  run  east  and  distances  of  every  eight  ranges  of 
■west  from  the  principal  meridian  and  townsJiipK,  or  forty-ciglit  miles,  east 
fonstitute  special  bases  for  township  and  west  of  the  principal  meridian; 
lines  lying  north  thereof.  Such  lines  the  guides  north  of  the  principal  base 
are  run  and  marked  at  every  four  starting  either  from  it  or  from  stand- 
townships,  or  twenty-four  miles  north  ard   parrallels. 

of  the   base,  and   at  every   five   town-  4  See  Zabriskie's  or   Lester's  U.   S. 

ships,  or  thirty  miles,  south  of  same.      Land  Laws  for  full  details  of  these 

3  Guide   meridians   are    surveyed   at       important  topics.     The  lines  and  cor- 


§161] 


SURVEYS,   PLATS   AND   SUBDIVISIONS. 


165 


to  illustrate  the  method  of  running  the  exterior  lines  of  townships 
and  sections. 

The  official  township  plats,  of  which  mention  has  already  been 
made,  will  furnish  all  the  information  necessary  to  a  thorough 
understanding  of  each  particular  township,  and  show,  in  addition 


N 

Town  1  Nor 

th 

6 

5 

4 
9 

3 

2 

1 

7 

8 

10 

11 

12 

Range  1  West 

18 
19 

17 

16 

15 

14 

13 

20 

21 

22 

23 

24 

30 

29 

28 

27 

26 

25 

31 

82 

33 

84 

35 

36 

E 


BASE  LINE 
S 

to  a  general  topographical  delineation  of  the  surveyed  territory, 
the  exact  area  of  each  section,  excesses,  deficiencies,  meanders  of 
navigable  streams,  islands  and  lakes  and  all  other  details  necessary 


ners  of  land  established  by  the  gov- 
ernment surveys  when  it  was  first 
surveyed,  platted  and  recorded  must 
control,  when  they  can  be  ascertained 
and  identified;  but  when  such  lines 
and  corners  are  in  doubt,  and  a  mat- 
ter of  much  uncertainty  and  dispute, 
the  parties  may  settle  them  and  thus 
end  the  dispute;  and  when  they  have 
agreed  upon  the  position  of  such 
boundary,  and  have  acted  upon  it  as 


the  true  line,  they  are  estopped  from 
asserting  another  and  a  different 
line:  Yates  v.  Shaw,  24  111.  367; 
Thomas  v.  Sayles,  63  111.  363.  But 
parties  holding  simply  an  agreement 
that  might  ripen  into  an  equity  can 
not  make  agreements  as  to  surveys 
whifh  will  be  binding  on  a  subse- 
quent holder  of  the  legal  title:  Saw- 
yer  v.    Cox,    63    111.    130. 


166 


ABSTR.VCTS   OF   TITLE. 


[§163 


for  surveying  or  subdivision ;  as,  witness  monuments,  section  and 
quarter  section  corners,  etc. 

§  163.  Subdivision  of  Sections.  Although  the  section  is  the 
smaHest  division  of  public  land,  the  lines  of  which  are  actually  run 
by  the  government  survej'ors,  smaller  divisions  are  contemplated 
by  law  and  provision  is  always  made  for  their  ready  ascertainment, 
which  is  done  by  running  true  lines  from  one  established  point  to 


40   A 

40   A 

80   A 

N  W  i 

N  E  i 

N  h 

V 

W   1 

"NT   V    1 

S  W  i 

•*     1 
S  E  ^ 

Si 

40   A 

40  A 

80  A 

w, 

aA 

0 

_D 

1 

\J^ 

u. 

'i 

s  w  ^ 

S 

E  -i 

O 

s 

160  A 

w  i 

E  i 

►si 
to 

80   A 

80    A 

1 

n 

E 

D  ^  Sec.  Corner. 


SO  chains  or  one  mile > 


Sec.  Corner. 


s 


another.  These  legal  subdivisions  vary  from  a  quarter  section, 
containing  160  acres,  to  a  "quarter-quarter"  section,  containing 
but  40  acres.  The  shape  and  area  of  the  sectional  subdivisions  will 
be  better  understood,  perhaps,  by  reference  to  the  foregoing  dia- 
gram. 

The  illustration  contemplates  only  an  ordinary  survey,  where 
no  obstacles  intervene  to  interrupt  the  symmetry  of  the  map,  or 
interfere  with  the  running  of  the  lines,  nor  does  it  provide  for 
deficiencies  or  excesses,  which  will  usually  occur  in  sections  1,  2, 
3,  4,  5,  6,  7,  18,  19,  30  and  31,  the  greatest  discrepancy  being  found 
in  section  6.  The  section  lines  are  surveyed  from  south  to  north 
on  true  meridians  and  from  east  to  west,  in  order  to  throw  the 
excesses  or  deficiencies  in  measurement  on  the  north  and  west  sides 


§  163]  SURVEYS,   PLATS   AND   SUBDIVISIONS.  167 

of  the  township,  and,  as  the  sphericity  of  the  earth  must  neces- 
sarily interfere  with  the  correctness  of  measurements  calculated 
for  a  level  area,  it  will  be  found  that  the  sections  and  half-sections 
on  the  northern  and  western  lines  of  a  township  will  always  vary 
from  the  prescribed  legal  standard.  The  legal  presumption  is, 
however,  that  the  section  contains  640  acres. 

The  section  and  quarter  section  corners  are  established  as  indi- 
cated in  the  diagram;  the  half  quarter  sections  are  not  marked  in 
the  field,  but  are  regarded  by  the  law  as  points  intermediate  be- 
tween the  half  mile,  or  quarter  section  comers.^ 

The  smallest  parcel  indicated  on  the  foregoing  map  is  a  quarter- 
quarter  section,  w^ith  an  area  of  40  acres,  this  being  the  limit  of 
subdivision  recognized  by  the  government.  If  required,  however, 
this  tract  may  be  divided  in  the  same  manner  as  a  section  and  the 
various  parts  described  by  the  same  general  terms. 

Where  navigable  lakes,  streams,  etc.,  intercept  the  surveys,  they 
produce  fragmentary  divisions  known  as  "fractional"  sections, 
quarters,  etc.,  the  divisions  of  a  fractional  section  being  also  known 
as  "lots."  Meander  corner  posts  are  established  at  all  those  points 
where  township  or  section  lines  intersect  the  banks  of  such  rivers, 
baj'Ous,  lakes,  or  islands  as  are  by  law  directed  to  be  meandered, 
and  the  courses  and  distances  on  meandered  navigable  streams 
govern  the  calculations  wherefrom  are  ascertained  the  true  areas 
of  the  tracts  binding  on  such  streams.  In  the  sale  of  such  frac- 
tional tracts  or  lots,  which  always  conform,  as  near  as  may  be,  to 
the  size  and  shape  of  the  regular  subdivisions,  the  specific  lot  is 
sold  by  the  acreage  as  returned  by  the  government  surveyors,  and 
reference  is  always  made  to  the  field  notes  and  plats  for  certainty 
of  description,  boundary,  etc.  The  diagram  on  the  succeeding  page 
will  serve  to  illustrate  the  subject  more  fully. 

While  meander  lines  follow,  in  a  general  way,  the  sinuosities  of 
the  bank  of  the  stream  or  lake,  yet  the'  lines  themselves  are  always 
straight.  This  is  necessary  for  the  purpose  of  accurate  measure- 
ment. Their  only  office,  however,  is  to  facilitate  measurement; 
they  do  not  constitute  boundaries  of  the  tract.  The  water  is 
always  the  boundary.^ 

Interspersed  throughout  the  rectangular  surveys  of  the  public 
domain,  are  surveys  of  numerous  bodies  of  land  of  anomalous  and 
irregular  forms  covered  by  titles  known  as  "Private  Land  Claims," 
which  the  government  of  the  United  States,  under  treaty  obliga- 

6  See,  3  Stat,  at  Large,  566;  4  States  where  the  bed  of  streams  and 
Stat,  at  Large,  503.  lakes  belongs  to  the  State.     See  §48 

6  This  is  particularly  true   in  those      for   a  discussion   of  riparian   titles. 


168 


ABSTRACTS   OP   TITLE. 


t§163 


tions,  or  from  other  considerations,  has  confirmed.  These  titles 
derive  their  origin  from  rights  acquired  under  the  sovereignty 
which  once  held  dominion  over  the  territory  now  constituting  part 
of  the  Union,  and  from  donations  under  the  laws  of  the  United 
States.  The  surveys  of  such  titles  are  in  strict  accordance  in 
measurement,  form,  and  extent  with  the  land  system  of  the  gov- 
ernment from  which  the  titles  are  derived. 

In  compiling  the  abstract  it  is  advisable  to  prefix  thereto  a  sketch 
of  the  government  survey  as  shown  by  the  official  township  plats, 
and  particularly  should  this  be  done  when  the  subject  of  the  exam- 


-  ^ 

NE-1-    NW-^ 

>     40  A. 

40  A. 

100  A. 

1       2 
\  13.72  A. 

I 
^22  74  A. 

1     "^^^ 

i    ! 

*% 

/  -    1 

'    _j 

^M    57 

7.39 

1       3 

4 

i  28.83  A. 

34.70  A. 

SEX 

190  A. 

s 

« 

/sw-isw- 

1           *            * 
1 

I         40  A. 

40  A. 

, 

(/ 

ination  consists  of  a  fractional  section  or  lot.  Such  sketch  will  be 
of  great  service  to  counsel  and  serve  to  illustrate  and  define  the 
boundaries  of  the  land  far  better  than  any  verbal  description  can. 
Where  land  binds  upon  a  navigable  meandered  stream  or  lake, 
accretions  and  relictions  will  occur,  materially  changing  the  shore 
line,  and  here  the  sketch  will  prove  very  serviceable  in  fixing  the 
original  boundaries,  as  well  as  in  determining  present  rights. 

§  164.  Rectangular  Surveying.  The  rectangular  sj'stem  of  sur- 
veying above  described  has  now  been  in  operation  in  the  United 
States  for  more  than  one  hundred  years.''^     Its  advantages  over 

7  It  was  formally  adopted  May  20, 
1785. 


§  164]  SURVEYS,  PLATS  AND  SUBDIVISIONS.  169 

other  methods  consist  in  its  economy,  simplicity  in  the  process  of 
transfer,  brevity  of  description  in  deeding  the  land  by  patents, 
and  in  the  convenience  of  reference  of  the  most  minute  legal  sub- 
division to  the  corners  and  lines  of  sections,*  the  convenient  mode 
of  subdividing  sections  with  a  view  to  economy  and  to  facilitate 
sales  of  small  tracts  being  an  essentially  marked  feature.  The 
principal  base,  principal  meridian,  standard  parallels  and  guide 
meridians  constitute  the  framework  of  the  rectangular  system  of 
public  surveys,  and  there  are  at  present  permanently  established 
twenty-three  principal  bases  and  thirty  principal  meridians,®  con- 
trolling the  public  surveys  in  the  land  States  and  territories. 

As  a  general  rule,  the  public  surveys  are  governed  by  one  prin- 
cipal base  and  principal  meridian,  but  in  a  few  districts  and  on 
the  Pacific  slope,  a  number  of  different  initial  points  are  neces- 
sitated by  abrupt  mountains  throughout  the  district.  The  lines 
of  public  surveys  over  level  ground  are  measured  with  a  four-pole 
chain  of  sixty-six  feet  in  length,^®  eighty  chains  constituting  a 
mile;  but  where  the  features  of  the  country  are  broken  and  hilly, 
a  two-pole  chain  is  used.  The  lines  and  corners  thus  run  are 
marked  and  perpetuated  by  blazing  trees,  stones,  mounds  or  other 
monuments,  the  witness  monuments,  bearings  and  distances  being 
ascertained  and  described  in  the  field  notes. 

The  boundaries  and  contents  of  the  several  sections  and  quarter 
sections  are  ascertained  in  conformity  to  the  following  rules:  ''The 
boundary  lines  actually  run,  and  marked  in  surveys  returned,  shall 
be  established  as  the  proper  boundary  lines  of  the  sections  or  sub- 
divisions for  which  they  were  intended;  and  the  length  of  such 
lines,  as  returned,  shall  be  held  and  considered  as  the  true  length 
thereof ;  and  the  boundary  lines  which  shall  not  have  been  actually 
run  and  marked  as  aforesaid,  shall  be  ascertained  by  running 
straight  lines  from  the  established  corners  to  the  opposite  corre- 
sponding corners ;  but  in  those  portions  of  the  fractional  townships 
where  no  such  opposite  corresponding  corners  have  been  or  can  be 
fixed,  the  said  boundary  line  shall  be  ascertained  by  running  from 
the  established  corners  due  north  and  south  or  east  and  west  lines 

8  See  Zabriskie's  Land  Laws,  508;  10  Commonly  known  as  a  "Gun- 
Instructions  Commr.  Gen.  Land  Of-  ter's  chain."  It  is  composed  of  one 
fiee,  May  3,  1881;  Government  Man^  hundred  links.  Twenty-five  of  these 
ual'of   Surveying,   1883.  links  make   one  rod,  but,   in  practice, 

9  These  are  divided  into  six  numer-  rods  are  now  seldom   used,   distances 
iral    meridians    and    twenty-four    in-  being  taken  in  chains  and  links.     See 
dppendent     merdidians     named     after  appendix    for  tables   of  measures, 
the    locality    which    they   control. 


170  ABSTRACTS    OF    TITLE.  [§  165 

(as  the  case  may  be)  to  the  water-course  or  other  external  boundary 
of  such  fractional  township.  "^^ 

§  165.  Meander  Lines.  ]\Ieander  lines  are  run,  in  surveying 
fractional  portions  of  the  public  lands  bordering  on  navigable 
rivers,  not  as  boundaries  of  the  tract,  but  for  the  purpose  of  defin- 
ing the  sinuosities  of  the  bank  of  the  stream,  and  as  the  means  of 
ascertaining  the  quantity  of  land  in  the  fraction  subject  to  sale, 
and  which  is  to  be  paid  for  by  the  purchaser.^''  Fractional  divi- 
sions, made  so  by  the  interference  of  water,  are  designated  and 
sold  by  the  numbers  attached  to  the  lots,  and  reference  is  always 
had  to  the  notes  of  survey.  The  water  indicated  in  these  notes  is 
always  the  boundary,  and  where  there  exists  a  difference  between 
the  meandered  line  as  run  and  the  existing  line  of  the  water-course, 
the  latter  and  not  the  former  is  to  be  considered  the  true  boun- 
dary.*' Yet,  though  a  meandered  line  is  generally  considered  as 
following  the  windings  of  a  stream,  it  seems  the  question  whether 
it  does  so  or  not  may  always  be  determined  by  evidence  aliunde,  and 
the  mere  fact  that  it  is  run  and  designated  upon  the  plats  as  a 
meandered  line  is  not  conclusive  against  the  government;  thus, 
it  has  been  held,  that  an  entry  of  government  land,  bounded  by  a 
meandered  line,  does  not  include  land  lying  at  the  time  between 
such  meandered  line  and  the  bank  of  the  river.**  So,  too,  while 
the  meander  line  is  not,  in  strict  sense,  a  boundary,  yet  if  there  is 
no  body  of  water  corresponding  to  the  meander  line,  to  which  the 
ownership  of  adjoining  lands  extends,  then  the  line  limits  the 
extent  of  the  land  convej^ed.*^ 

Where  fractional  pieces  of  land  are  patented,  bounded  in  part 
by  a  stream  or  bayou,  the  original  plat  may  be  resorted  to,  and 
the  lines  as  originally  run  will  control.  This  is  the  rule  adopted 
in  determining  controversies  between  contiguous  proprietors  of 
fractional  lands,  the  patentees,  and  those  claiming  under  them, 
being  restricted  to  the  boundaries  as  shown  by  the  plats  and  field 
notes.  In  all  cases,  where  land  is  made  fractional  by  a  navigable 
water-course,  the  patentee  purchases  by  the  plat,  and  a  patent  for 
a  fractional  part  of  a  quarter  section  on  one  side  of  a  water-course, 

111    Stat,   at   Large,   446;    2    Stat.  14  Lammers  v.  Nissen,  4  Neb.  245. 

at  Large,   73;    2  do.   313.  But  see  Wright  v.  Day,  33  Wis.  260, 

12  R.  R.  Co.  V.   Schurmeir,   7   Wall.      and   authorities   last  cited. 

(IT.    S.)    272;    Lamprey   v.   State,   52  15  As  where  a  meandered  lake  had 

Minn.  181.  dried  up.     Carr   v.   Moore,   119   Iowa, 

13  Boorman    v.    Sunnucks,    42    Wis.      152. 
233;    Houck    v.    Yates,    82    111.    179; 
Lamprey  v.   State,  52  Minn.   181. 


§  166]  SURVEYS,   PLATS  AND   SUBDIVISIONS.  171 

where  the  area  sold  is  noted  on  the  plat  of  the  fractional  tract 
called  for  by  the  patent,  will  not  extend  his  entry  and  purchase 
across  the  stream,  so  as  to  embrace  that  part  of  the  quarter  on  the 
other  side.^^ 

§  166.  Plats  and  Subdivisions.  Agricultural  lands  seldom  re- 
ceive any  other  subdividing  than  that  afforded  by  the  government 
survey,  but  in  cities,  towns  and  villages,  the  necessities  of  society 
require  a  most  minute  subdivision  into  what  are  popularly  termed 
blocks  and  lots.^''^  Original  subdivisions  again  become  the  subject 
of  resubdivisions,  and  these  in  turn  are  not  infrequently  divided 
to  meet  the  exigencies  of  social  or  business  relations.  The  formal 
act  of  resurveying  is  technically  termed  a  subdivision;  the  result 
of  the  survey,  when  projected  upon  paper,  a  plat. 

These  subdivisions  and  plats  play  an  important  part,  both  in 
conveyancing  and  in  the  examination  of  titles,  and  upon  them  no 
small  portion  of  the  validity  of  land  titles  rests.  In  every  com- 
munity of  any  appreciable  size,  lands  are  conveyed  and  described 
with  special  reference  to  these  plats  and  subdivisions,  the  govern- 
ment survey  being  referred  to  only  incidentally  and  for  the  pur- 
pose of  greater  certainty  in  locating  the  particular  tract  which 
forms  the  subject  of  the  plat.  They  form  equally  as  important 
features  in  preparing  an  abstract  as  the  title  deeds  there  shown, 
and  require  the  same  degree  of  care  from  the  examiner  in  their 
exposition.  Where  a  deed  of  conveyance  gives  no  other  descrip- 
tion of  the  land  than  the  lot  or  block  of  a  survey  or  subdivision, 
the  authentic  plat  of  such  survey  is  as  much  a  part  of  the  deed 
as  if  set  out  in  it,^^  and  a  reference  to  a  plat  is  as  effective  by  way 
of  estoppel  as  express  words  of  grant  or  covenant.^^  A  reference 
to  a  plat  by  lot  and  block  has  usually  a  more  controlling  influence 
than  a  special  description,  and  when  a  designation  by  lot  is  fol- 

16MeCormick  v.  Huse,  78  111.  363.  other   receptacle,    and   drawn   out   by 

17  The    term    "lot"    seems    to    be  those   among  whom  the  land  was  to 

peculiar   to   American  land  parceling.  be    divided.      Each    man    would    then 

Its   origin  is   unknown.     It   does   not  take  the  parcel   corresponding  to   the 

appear  to  have  any  aflSnity  with  the  number    he    had    drawn,    and    as    his 

term    as    used    in    other    conneetions,  land   had   come   to  him,   literally,   by 

as  "a  lot  of  goods,"  etc.     It  is  said  lot,     it    soon    became    customary     to 

that    the    word,    in    connection    with  speak  of  the  land  as  a  lot,  and  the 

land,   originated   in   the    colonies   and  usage   has  ever  continued, 

grew   out   of   the   custom   of   dividing  18  Dolde    v.   Vodicka,   49    Mo.    100; 

grants  into  parcels  and  then  number-  Powers  v.   Jackson,   50   Cal.  429. 

ing  each  parcel.     The  numbers  would  19  Baxter  v.  Arnold,  114  Mass.  577; 

then    be    placed    in    a    hat,    or    some  Cox  v.   James,  45  N.   Y.   557. 


172  ABSTRACTS   OP    TITLE.  [§160 

lowed  by  a  description  by  metes  and  bounds  embracing  an  area 
less  than  the  lot,  it  has  been  held  to  import  an  intent  of  the  grantor 
to  convey  the  whole  lot,  the  law  presuming  the  addition  to  be 
merel}''  an  effort  to  give  a  more  particular  description.''*' 

§  167.  Formal  Requisites.  Tlie  formalities  attending  the  plat- 
ting and  subdividing  of  land  are  the  subject  of  express  statutory 
regulation  in  all  the  States,  and,  unlike  deeds,  there  are  no  common 
or  uniform  methods,  each  State  providing  its  own  system  of  plat- 
ting and  authentication.  Ordinarily  the  plat  must  show  the  shape 
and  exterior  boundaries  of  the  land  it  is  intended  to  represent, 
and  of  each  subdivision  thereof;  the  length  and  courses  of  all 
boundary  lines;  the  monuments  erected  in  the  field;  and  the  name 
of  the  tract  so  divided,  as  well  as  the  streets,  alleys,  etc.,  shown 
thereon,  together  with  the  width  of  such  streets,  alleys,  etc.  Ap- 
pended to  the  plat  there  must  usually  be  a  description  of  the  land 
surveyed,  officially  certified  by  the  surveyor  and  a  certificate  ot 
acknowledgment  by  the  owner  or  owners  of  the  laud.  In  addi- 
tion, municipal  regulations  sometimes  require  an  approval  by  the 
civic  authorities.  The  foregoing,  or  similar  requirements,  are  usually 
made  indispensable  requisites  to  registration,  and  their  faithful 
observance  is  necessary  to  give  validity  to  the  subdivision.  As  a 
rule,  no  field  notes  are  required,  the  dimensions  shown  upon  the 
plat  being  sufficient  for  all  practical  purposes. 

Plats  are  usually  recorded  in  the  registry  of  deeds  in  special 
books,  though  this  is  not  a  uniform  practice,  and  where  no  specific 
regulation  exists  they  will  also  be  found  in  other  places.  Thus, 
arbitrary  divisions  made  by  the  assessor  for  the  purposes  of  taxa- 
tion will  frequently  be  found  in  the  office  of  the  auditor  or  clerk  of 
the  county;  plats  made  by  the  order  of  a  court  of  chancery  in 
partition,  and  other  cases,  will  be  found  among  the  records  and 
archives  of  the  court,  though  these  observations  apply  rather  to 
what  has  been  than  to  present  practices.  At  the  present  time  all 
plats,  particularly  in  the  newer  States,  are  required  to  be  filed  with 
the  recorder  of  deeds.  The  following  will  serve  as  a  precedent  for 
abstracting  a  plat  and  subdivision,  the  minor  details  of  which  must 
be  varied  to  suit  the  demands  of  local  legislation. 


Subdivision 

by 

WUliam  Smith 


Plat,  entitled  [here  set  out  the  title  as 
►  found  on  the  plat,  and  proceed  as  here- 
inafter shown]. 


20  Rutherford     v.     Tracy,     48     Mo. 
325. 


§  167]  SURVEYS,   PLATS   AND   SUBDIVISIONS.  173 

Or,  if  desired,  commence  it  thus : 


Snuith's  subdivision  ^^ 

of 
The  northeast  quarter 
of  the  northwest  quar- 
ter     of    Section    10, 
Town       13       North, 


Plat,  entitled  as  in  the  margin. 
Recorded  June  2,  1881. 
Book  2  of  Plats,  page  25. 
Surveyor's  certificate,  hy  Jason  Lothrop, 
dated  June  1,  1881,  certifies  that  he  has 
surveyed  the  northeast  quarter,  etc.,   [set 
Range  21,  East  of  the  »  ^^^  description  by  surveyor]  into  lots  and 
3d  P.  M  I  ^^ocks,  as  shown  upon  the  annexed  map, 

and  that  said  map  is  a  correct  representa- 
tion of  all  the  exterior  houndaries  of  the  land  surveyed,  and  of 
the  divisions  therean  made,  and  further  certifies  that  said  survey 
and  map  was  made  hy  the  order  and  direction  of  William  Smith, 
and  that  he  has  fidly  complied  with  all  the  provisions  of  the  law  in 
surveying,  subdividing  and  mapping  same 

[Should  notes  of  survey  be  filed  in  addition  to  the  map,  they 
may  be  shown  or  not  in  the  discretion  of  the  examiner,  or  as  his 
client  may  direct.] 

Acknowledged  hy  William  Smith,  as  owner,  June  2, 1881. 

In  subdivisions  of  urban  lands  the  plat  is  usually  required  to  be 
approved  by  the  civic  authorities  or  by  some  special  officer  ap- 
pointed for  that  purpose.  The  approval  may  be  general  or  only 
with  reference  to  streets  and  alleys.  "When  such  is  the  case  a  brief 
reference  to  the  approval,  when  endorsed  upon  the  plat,  should  be 
shown  in  the  abstract.    Thus : 

Approved  May  29,  1882,  hy  the  Board  of  Trustees  of  the  Town 
of  Salem  (as  to  location  of  streets  and  alleys  only). 

The  map  should  then  follow,  prefaced  by  the  statement : 
Said  map  is  as  follows. 

Usually,  if  the  map  is  small,  it  is  customary  to  insert  it.  If 
very  large,  then  only  such  portion  need  be  set  out  as  is  necessary 
to  show  the  relative  location,  shape,  boundaries  and  distances  of 
the  particular  lot  or  lots  under  examination. 

In  this  event,  the  concluding  paragraph  should  read: 

21  This  is  taken  from  the  title  of 
the  plat,  and  should  consist  of  a 
literal  transcription. 


174  ABSTRACTS   OP   TITLE.  [§  167 

So  much  of  said  map  as  relates  to  the  land  in  question  is  as 
follows: 

Sometimes  the  client  will  direct  the  omissiou  of  the  map.  When 
such  is  the  case  it  may  be  noted  as  follows : 

By  direction  we  om/it  the  map. 

It  is  recommended  that  whenever  practicable  the  plat  or  some 
portion  of  it  be  shown.  It  is  usually  of  considerable  assistance 
to  counsel,  and  if  the  examination  involves  niceties  in  measure- 
ments, or  conflicting  claims  of  contiguous  proprietors,  it  is  indis- 
pensable. If  the  law  requires  attesting  witnesses  any  defect  of  this 
nature  should  be  noted,  as  also  any  imperfect  or  defective  execu- 
tion. Plats  and  subdivisions  made  by  executors,  administrators 
and  guardians,  as  well  as  in  partitions  between  heirs  and  tenants 
in  common  are  frequently  made  under  the  direction  and  sanction 
of  a  court  of  equity,  and  in  this  event  a  general  synopsis  of  the 
proceedings  in  court,  as  well  as  the  acts  of  the  owners  or  parties 
interested,  should  be  shown. 

§  168.  Effect  of  Reg-istration.  When  duly  executed,  acknowl- 
edged and  recorded,  as  provided  hy  law,  a  certified  copy  of  a  plat 
and  subdivision  may  be  used  in  evidence  to  the  same  extent  and 
with  like  effect  as  in  case  of  deeds,  and  by  statute  such  registration 
and  acknowledgment  is  usually  made  to  operate  as  a  conveyance 
in  fee  simple  of  those  portions  of  the  platted  lands  as  are  marked  or 
noted  on  such  plat  as  donated  or  granted  to  the  public,  or  any 
society,  corporation  or  body  politic,  and  as  a  general  warranty 
against  the  donor,  his  heirs  and  representatives,  to  such  donee  or 
grantee  for  their  use,  or  for  the  use  and  purposes  therein  named  or 
intended,  but  for  no  other  use.  The  parts  intended  for  streets, 
alleys,  ways,  commons,  or  other  public  uses,  are  held  in  the  cor- 
porate name  of  the  municipality  in  trust  for  the  uses  and  purposes 
set  forth  or  intended.^'^  Selling  by  a  plat  which  has  not  been  re- 
corded is  a  misdemeanor  in  many  of  the  States. 

§  169.  Vaxjation  and  Cancellation.  The  making  of  plats  and 
subdivisions  being  regulated,  in  the  main,  by  statute,  no  uniform 
rules  can  be  given  as  to  the  method  of  vacation  or  cancellation,  and 
recourse  must  be  had  to  local  law,  as  in  the  case  of  platting  and 

22  See  R.  S.  111.  1845,  p.  115;  do.  645;  see  infra,  "Dedication  by 
1874,    p.    771;    R.    S.    Wis.    1878,    p.      Plat,"    §170. 


§  169]  SURVEYS,   PLATS   AND   SUBDIVISIONS.  175 

recording.  Ordinarily  a  plat  may  be  vacated  by  the  owner  of  the 
property,  at  any  time  before  he  has  disposed  of  any  part  thereof, 
by  a  written  instrument  declaring  such  intention,  executed,  ac- 
knowledged or  proved,  and  recorded  in  like  manner  as  deeds  of 
land.  Such  a  declaration,  duly  recorded,  usually  operates  to  de- 
stroy the  force  and  effect  of  the  recording  of  the  plat  so  vacated, 
and  divests  all  public  rights  in  the  streets,  alleys,  public  grounds, 
etc.,  laid  out  or  described  in  such  plat.^^  The  record  of  the  plat 
so  vacated  should  also  refer  to  the  vacation. 

The  foregoing  describes  the  common  and  most  simple  manner 
of  vacation.  In  some  States,  however,  more  formality  is  required, 
frequently  rendering  necessary  the  intervention  of  a  court,  as  well 
to  authorize  the  initiation  of  proceedings  as  to  approve  of  such  as 
may  be  taken.^*  Where  an  application  is  required  to  be  made  to 
a  court,  notice  is  also  required  to  all  whom  it  may  concern.  In  the 
former  case  of  vacation  a  synopsis  of  the  instrument  filed  is  all 
that  is  necessary  in  the  abstract;  in  the  latter,  a  resume  of  the 
steps  taken  as  well  as  the  judgment  or  order  of  the  court  is  neces- 
sary. The  effect  is  practically  the  same  in  either  case  both  as  to 
the  owners  and  the  public.  When  made  by  a  declaratory^  state- 
ment, the  abstract  would  be  substantially  as  follows : 


Vacation^^ 

of 
The    plat    of    River- 
dale,      being      Fred. 
Schmddt's  subdivision 


Declaration  of  vacation. 

Dated  Jan.  31, 1883. 

Recorded  Jan.  31,  1883. 

Booh  852,  page  210. 

Recites,  that  Frederick  Schtnidt,  who  is 


2,300  chains  of  the 
southeast  quarter  of 
section  33,  town  37 
north,  range  14  east. 


of  part  of  the  south  l  the  sole  owner  of  all  the  lands  and  lots 

covered  by  blocks  5,  6,  7,  8,  9,  10  (etc.),  of 
Frederick  Schmidt's  subdivision  of  part  of 
the  south  2,300  chains  of  the  southeast  quar- 
ter of  section  33,  town  37  north,  range  14 
east  of  the  3d  P.  M.  in  the  County  of  Cook, 
and  State  of  Illinois,  recorded  June  21,  1874,  in  book  7  of  plats, 
page  83,  under  the  provisions  of  the  statute,  sets  aside  the  sub- 
division referred  to  and  vacates  the  same  for  the  purpose  of  re- 
storing the  property  to  its  original  condition,  meaning  and  intend- 
ing to  declare  vacated,  and  does  declare  vacated  the  whole  of  said 
plat. 

Acknowledged  Jan.  31,  1883. 

28  R.    S.    111.    1874,   Chap.    109,    §  6. 
24  R.     S.    Wis.     1878,     Chap.     101, 
§  2265. 


176  ABSTRACTS   OP   TITLE.  [§  169 

Whenever  practicable,  a  vacation  should  immediately  follow  the 
abstract  of  the  subdivision  and  plat  thereby  affected.  This  can 
always  be  done  where  no  conveyances  have  been  made.  Where 
portions  of  the  property  have  been  sold  and  the  owners  join  in  the 
execution  of  the  vacation,  the  deeds  to  them  will  intervene  in  chro- 
nological order.  As  a  rule,  there  can  be  no  vacation  of  a  portion 
of  a  plat  containinof  a  dedication  of  land  to  a  public  use  unless  all 
of  the  owners  of  said  lots  sold  with  reference  thereto  join  in  the 
proceedinp:.26 

§170.  Dedication  by  Plat.  Where  a  dedication  to  public  use 
is  sought  to  be  established  from  the  acquiescence  of  the  owner  in 
the  use  of  the  property  by  the  public,  or  from  acts  or  declarations 
of  an  equivocal  character,  which  arc  consistent  with  a  dedication 
1o  the  public  use,  or  to  the  mere  permissive  use  by  the  ])ublic  for 
a  temporary  though  indefinite  period  of  time,  the  intention  of  the 
owner  in  permitting  such  use  is  nnquestionably  of  controlling  in- 
fluence and  importance  in  determining  whether  property  has  been 
dedicated  by  the  owner  1o  public  use  or  not.^'  But  where  the 
dedication  is  clearly  manifested  by  unequivocal  acts  or  declara- 
tions, upon  which  the  public  or  those  interested  in  such  dedication 
have  acted,  the  fact  that  the  owner  may  have  entertained  a  differ- 
ent intention  from  that  manifested  by  his  acts  or  declarations  is 
of  no  consequence.^^  Therefore,  if  the  owner  of  land  subdivides 
and  plats  the  same,  or  lays  out  and  establishes  a  town  or  any  addi- 
tion thereto,  and  makes  and  exhibits  a  map  or  plan  of  such  town 
or  addition,  with  streets,  alleys,  public  squares,  etc.,  and  sells  the 
lots  with  reference  to  such  map  or  plan,  the  purchasers  acquire, 
as  appurtenant  to  their  lots,  all  such  rights,  privileges,  easements 
and  servitudes  represented  by  such  map  or  plan  to  belong  to  them, 
or  to  their  owners,  and  the  sale  and  conveyance  of  lots  according 
to  such  map  implies  a  grant  or  covenant,  for  the  benefit  of  the  own- 
ers of  the  lots,  that  the  streets  and  other  public  places  represented 
by  the  map  shall  never  be  appropriated  by  the  owner  to  a  use  in- 
consistent with  that  represented  by  the  map  on  the  faith  of  which 
the  lots  are  sold.^* 

86  Instead   of   this   caption    the   ex-  v.    Dixon,   9    How.    30 ;    Manderschild 

aminer  may  say,  "Vacation  by  Fred-  v.    Dubuque,    29    Iowa,    73;    Godfrey" 

erick  Schmidt,"  and  then  set  out  the  v.  City  of  Alton,  12  111.  29;   Rees  v. 

title  of  the  plat  vacated  in  the  right-  Chicago,   38   111.   322. 
hand   margin.  28  Lamar    County    v.    Clements,    49 

26  Village    of    Lee    v.    Harris,    206  Tox.   347. 
111.    42S.  29  Lamar    County    v.    Clements,    49 

27 Dillon   Mun.    Corp.    §498;    Irwin  Tex.   347;   Huber  v.  Gazley,  18  Ohio, 


§  171]  SURVEYS,   PLATS  AND   SUBDIVISIONS.  177 

If  the  owner  of  land  indicates  by  the  map,  or  other  unequivocal 
acts  or  declarations,  that  a  particular  lot  or  square  is  to  be  re- 
served or  applied  to  a  particular  or  specific  use,  of  a  quasi  public 
character,  and  such  as  to  induce  purchasers  of  contiguous  or  neigh- 
boring lots  to  give  a  higher  price  than  they  otherwise  would,  the 
use  to  which  such  lot  was  to  be  appropriated  would  no  doubt  be 
a  reservation,  and  not,  strictly  speaking,  a  dedication  to  public  use. 
But,  nevertheless,  the  difference,  so  far  as  the  owners  of  lots  pur- 
chased on  the  faith  of  such  reservation  are  concerned,  is  merely 
nominal,  for  the  owner  of  the  property  who  thus  sells  it  is  estopped 
from  appropriating  the  land  so  reserved  to  a  purpose  inconsistent 
with  that  for  which  it  was  reserved,  or  he  will  be  held  by  such 
sale  to  have  created  a  servitude  in  the  property  reserved  in  favor 
of  the  dominant  estate,  which  he  has  conveyed,  which  will  prevent 
his  applying  the  reserved  property  to  any  other  purpose  than  that 
for  which  it  was  reserved.^** 

As  a  general  proposition  the  fee  does  not  pass  by  a  dedication 
but  remains  in  the  original  proprietor  burdened  with  the  public 
use;  but  in  a  statutory  dedication,  by  making  and  recording  a 
plat,  the  fee  passes  as  an  incident  and  is  held  by  the  municipality 
for  the  use  and  benefit  of  the  public.^i  An  important  distinction 
will  therefore  be  made  between  a  common-law  and  a  statutory  ded- 
ication. But  while  the  courts  have  uniformly  held  that  a  fee 
passes  by  statutory  dedication,  yet  it  certainly  is  not  a  fee  in  the 
usual  legal  acceptation  of  that  term.^^  j^  fact  the  interest  thus 
conveyed  is  practically  a  new  form  of  estate  for  which  neither 
courts  nor  legal  lexicographers  seem,  as  yet,  to  have  been  able  to 
find  a  name. 

As  a  necessary  sequence,  where  the  title  of  one  who  makes  a 
dedication  fails,  the  dedication  also  fails ;  but  if  the  owner  of  the 
title  recognizes  the  dedication,  as  where  there  has  been  a  plat 
made  by  the  one  whose  title  has  failed  and  the  true  owner  deeds 
lands  according  to  the  plat,  he  will  be  estopped  from  denying  the 
dedication.^* 

§171.  Re-surveys.  Occasionally  re-surveys  are  made,  when, 
by  reason  of  time  or  circumstance,  the  original  survey  fails  to  fur- 

18;   Logansport  v.  Dunn,  8  Ind.  378;       v.    Board    of    Education,    73    Mo.    34. 
Beaty  v.   Kurtz,  2  Pet.  566.  This  is  statutory.     Consult  local  stnt- 

80  Harrison  v.  Boring,  44  Tex.  255;       utes. 
Com.  V.  Rush,  14  Penn.   St.   186.  32  Field  v.   Barling,  149  111.  556. 

31  Manly    v.    Gibson,    13    111.  308;  33Gridley  v.   Hopkins,   84   111.   528. 

R.  B.  Co.  V.   .Toliet,  79   111.  25;  Reid 
Warvelle  Abstracts — 12 


178  ABSTRACTS   OF   TITLE.  [§  171 

Tiish  the  desired  infonnatioii.  The  only  object  of  a  re-survey  is  to 
determine  the  lines  of  the  original,  and  hence  it  will  never  be  per- 
mitted to  change  or  alter  the  lines  of  the  old  survey  whenever 
such  lines  can  be  ascertained  from  monuments  or  other  authentic 
data.  In  every  instance  the  monuments  set  by  the  original  sur- 
vey and  named  or  referred  to  in  the  plat,  are  the  highest  and  best 
evidence  from  which  to  determine  lines.  If  these  are  lacking  the 
stakes  set  by  the  surveyor  may  be  resorted  to,  and,  in  the  event 
that  these  can  not  be  found,  buildings  or  permanent  erections 
shown  to  have  been  constructed  according  to  them  may  themselves 
be  considered  monuments  and  proper  evidence  for  locating  the 
true  lines. 

The  disturbance  of  ancient  lines  and  boundaries  is  discouraged 
by  the  courts  as  tending  to  create  confusion  and  the  unrest  of 
titles,  and  this  is  particularly  the  case  where,  as  often  happens, 
municipal  officers  attempt  arbitrary  re-surveys  for  the  purpose  of 
correcting  or  changing  the  lines  or  boundaries  of  a  town.'* 

34  See,  Racine  v.  Emerson,  85  Wis. 
80. 


CHAPTER  XIII, 


FOEMAIi  PARTS  OF  DEEDS. 


172. 

Operative  parts  of  a  deed. 

§186. 

Description — Constructiom 

173. 

Names  of  the  parties. 

§187. 

Special  recitals. 

174. 

Grantors. 

§188. 

The  habendum. 

175. 

Grantees. 

§189. 

Exceptions    and    reservations. 

176. 

Nature  of  the  instrument. 

§190. 

Conditions   and   limitations. 

177. 

Date  of  instrument. 

§191. 

Covenants. 

178. 

Eegistration. 

§192. 

Execution. 

179. 

Consideration. 

§193. 

The  signature. 

180. 

Effect  of  consideration. 

§194. 

The  seal. 

181. 

Words   of  grant. 

§195. 

Attestation. 

182. 

Words     of     inheritance     and 

§196. 

Acknowledgment. 

limitation. 

§197. 

Delivery. 

183. 

Description  of  property. 

§198. 

Ancient  deeds. 

184. 

Description — Sufficiency. 

§199. 

Stamps. 

185. 

Description — Identification. 

§  172.  Operative  Parts  of  a  Deed.  In  making  an  abstract  or 
synopsis  of  a  deed  of  conveyance,  the  essential  features  which 
require  notice  on  the  part  of  the  examiner  are  as  follows : 

The  names  of  the  parties,  grantor  and  grantee  respectively,  with 
full  descriptio  personce,  including  the  character  in  which  they  act. 

The  nature  of  the  instrument. 

The  dates  respectively,  or  execution  and  registration,  together 
with  the  volume  and  page  of  the  registry. 

The  consideration,  or  other  matter  of  inducement. 

The  operative  words  of  grant,  inheritance  and  limitation. 

The  description  of  the  land  or  property  conveyed. 

The  habendum,  whenever  it  assumes  to  limit  or  qualify  the  grant. 

Reservations  and  exceptions  from  the  grant. 

Covenants  and  conditions. 

Restrictive  clauses,  and  directions  respecting  the  uses  to  which 
the  land  shaU  be  applied. 

Special  recitals. 

Execution  and  attestation. 

The  acknowledgment  and  certificate  of  conformity. 

A  number  of  the  foregoing  parts  must  appear  in  every  abstract, 
while  a  few  need  only  be  shown  when  they  become  material;  the 
question  of  materiality  to  be  decided  by  the  examiner  from  the 

179 


180  ABSTRACTS   OF    TITLE.  [§  17'J 

circumstances  developed  in  each  partieular  case.  A  brief  review  oi. 
the  foregoing  heads  -will  be  made  in  tlie  sueeeeding  paragraphs  aiid 
the  subjects  will  also  receive  further  consideration  in  other  parts 
of  the  work  treating  of  specific  conveyances. 

§173.  Names  of  the  Parties.  As  there  can  be  no  valid  deed 
without  grantors  to  give  ^  and  grantees  capable  of  taking,^  tlie  par- 
ties to  the  conveyance  form  the  first  natural  inquiry.  In  the 
abstract  they  should  be  shown  with  the  same  certainty  of  identity 
as  in  the  original  instruments,  together  wuth  any  imperfect  desig- 
nation, error  or  omission  appearing  on  the  face  of  tlie  deed  or 
deduced  inferentially  from  a  comparison  with  other  instruments 
in  the  chain.  Errors  or  omissions,  however  slight  or  trivial,  should 
always  be  mentioned  in  such  a  manner  as  to  bring  them  to  the 
attention  of  any  person  who  may  peruse  the  abstract,  and,  when 
necessary,  such  mention  may  be  supplemented  by  the  examiner's 
private  note,  or  by  references  to  other  instruments  shown  in  the 
same  examination.  The  names  of  the  parties  should  form  the  cap- 
tion to  the  synopsis,  and  are  usually  written  in  the  style  of  a  legal 
caption  or  entitlement  in  court  proceedings,  on  the  left  hand  mar- 
gin of  the  sheet  and  united  by  a  bracket. 

§  174.  Grantors.  The  names  of  the  grantors  appear  several 
times  in  a  deed.  They  are  usually  inserted  among  the  first  recitals 
of  the  premises,  accompanied  with  a  description  of  the  person  and 
other  particulars  as  to  residence,  marriage,  capacity,  etc.  Fre- 
quently they  again  appear  in  the  covenant  clause  and  finally  in  the 
execution.  In  abstracting  a  deed  the  names,  wherever  written, 
should  be  carefully  compared  with  each  other  and  variances  in  the 
granting  or  covenanting  clauses  as  well  as  in  the  execution  and  ac- 
knowledgment, properly  noted.  The  domestic  relations  of  either 
or  any  of  the  grantors,  if  stated,  should  always  be  given  with  the 
same  particularit}''  as  the  original. 

At  common  law  the  deed  of  a  married  woman  is  absolutely  void,' 
but  by  liberal  and  progressive  legislative  enactments,  this  rigorous 
and  seemingly  unjust  rule  has  been  practically  abrogated.  The 
examiner  will  therefore  note  the  changes  of  the  law  in  this  respect, 
as  applied  in  his  own  State,  and  carefully  observe  that  all  the  re- 
quirements of  the  statute,  at  the  date  of  the  deed,  have  been  sub- 

1  Whitaker  V.  Miller,  83  111.  381.  3  Fowler    v.    Shearer,    7    Mass.    14; 

2Garnett  v.  Garnett,  7  T.  B.  Mon.       Lane  v.  Soulard,  15  111.  124. 
(Ky.)    545;    Douthitt   v.    Stinson,    63 
Mo.   268. 


§  175]  FORMAL  PARTS  OP  DEEDS.  181 

stantially  complied  with,  as  a  married  woman  can  only  be  divested 
of  her  property  or  interest  in  land  in  the  mode  which  the  Legisla- 
ture has  prescribed.* 

Although  it  is  the  universal  practice  of  conveyancers  to  insert 
after  the  names,  the  residence  and  not  infrequently  the  occupation 
of  the  parties,  there  appears  no  good  reason  why  these  matters 
should  be  transferred  to  the  abstract.  The  question  of  alienage  is 
set  at  rest  in  most  of  the  States  by  special  legislation,  while  the 
chain  of  conveyances  is  usually  sufiicient  to  prove  identity  without 
referring  to  residence  or  occupation.  Some  examiners  give  the 
residence  of  parties  only  when  they  reside  without  the  State,  as 
an  aid  in  determining  their  identity  in  the  search  for  judgments, 
or  to  enable  counsel  to  further  prosecute  inquiries  raised  by  the 
abstract  and  not  answered  therein.  The  matter  is  optional  with 
the  examiner  and  may  be  omitted  or  not  in  his  discretion.  Special 
descriptions,  particularly  when  explanatory  of  the  capacity  in 
which  the  parties  act,^  should  be  given  verbatim.  This  direction 
acquires  additional  force  when  such  descriptions  indicate  repre- 
sentative or  official  character. 

§  175.  Grantees.  Most  of  the  foregoing  remarks  on  grantors 
apply  with  equal  force  to  grantees,  and  the  same  care  should  be 
observed  in  reciting  and  describing  them.  The  names  of  the  gran- 
tees are  found  in  the  operative  part  of  the  premises,  and  occa- 
sionally are  repeated  in  the  habendum,  though  the  references  which 
follow  are  usually  to  "said  second  parties."  Imperfect  designa- 
tion, errors  and  omissions  should  be  treated,  so  far  as  may  be,  in 
the  same  general  manner  as  in  case  of  grantors,  though  these  cir- 
cumstances are  not  so  apparent  when  applied  to  grantees,  and 
usually  must  be  deduced  inferentially  or  by  comparison. 

It  is  essential  to  the  validity  of  a  conveyance  that  it  be  to  a 
grantee  capable  of  taking  and  of  proper  identification;  hence,  a 
deed  to  one  who  had  died  prior  to  its  execution  ^  or  to  a  person 
not  in  being,'''  or  to  a  corporation  which  has  no  legal  existence,* 
would  be  a  nullity,  and  pass  no  title  to  any  one.®    The  same  result 

4  Mason  v.  Brock,  12  111.  273;  Gar-  v.  HoUingsworth,  113  Ga.  210.  But 
ret  V.  Moss,  22  111.  363;  Heaton  v.  this,  of  course,  refers  only  to  a  deed 
Fryberger,  38  Iowa,  185.  conveying  a  present  estate. 

5  As  heirs  at  law  of  a  deceased  8  Douthitt  v.  Stinson,  63  Mo.  268. 
person;  devisee  of  a  certain  testator;  9 Douthitt  v.  Stinson,  63  Mo.  268; 
widow  of  a  former  grantor,  etc.  Hornbeck  v.  Westbrook,  9  Johns.   (N. 

6  Hunter   v.   Watson,   12   Gal.   363.  Y.)    73;    but  although   no  grantee  be 

7  Morris  v.  Candle,  178  111.  9;  named,  if  the  grant  be  made  for  a 
Heath  v.  Heath,  114  N.  C.  547;  Davis  specific    use,    a    trust    will    often    be 


182 


ABSTFL\CTS   OP   TITLE. 


[§175 


would  follow  from  a  deed  to  the  heirs  of  a  living  person  named 
therein  without  t^iving  the  names  of  the  heirs.^®  So,  too,  a  con- 
veyance to  Jno.  ISmith  &  Co.  would,  at  law,^^  have  the  effect  to  vest 
the  title  in  Jno,  Smith  alone,^^  a  tirni  name  not  being  a  sufficient 
naming  of  the  grantee;  yet  it  seems  that  this  may  be  regarded  as 
a  latent  ambiguity  which  may  be  explained  by  parol,^^  while  in 
equity,  he  would  be  treated  as  holding  the  legal  title  in  trust  for 
the  partnership.^*  A  conveyance  to  John  Smith  &  Son  would  be 
effective,  however,  as  "son"  is  a  sufficient  word  of  purchase,  and, 
similarly,  a  deed  to  Smith  &,  Jones  of  a  designated  place,  would  be 
legally  sufficient  to  pa.ss  title  to  John  Smith  and  Thomas  Jones, 
it  being  shown  that  they  were  engaged  in  business  as  partners  at 
the  place  named,^^ 

An  absolute  conveyance  from  husband  to  wife,  while  void,  at 
law,  will  generally  be  upheld  in  equity,  and  will  vest  the  title  in 
the  wife  as  against  the  heirs  of  the  husbaud.^^ 

A  deed  to  a  party  by  a  wrong  baptismal  or  Christian  name  will 
yet  vest  title  in  the  intended  grantee,^'''  extrinsic  evidence  being 
admissible  to  explain  mistakes  or  prove  identity,^^  and  if  upon  a 


created  which  a  court  of  equity  will 
protect,  and,  if  necessary,  appoint  a 
trustee  and  compel  a  conveyance  to 
him  of  the  legal  title.  Bailey  v.  Kil- 
burn,  10   Met,    (Mass.)    176, 

10  Hall  V.  Leonard,  1  Pick.  (Mass.) 
27;  Winslow  v.  Winslow,  52  Ind.  8, 
In  a  similar  case  in  Tennessee,  how- 
ever, it  was  held  that  the  word 
"heirs"  should  not  be  taken  in  its 
technical  signification,  but  to  mean 
"children,"  and  that  the  deed  took 
effect  as  a  present  grant.  See  Grimes 
V,  Orrand,  2  Heisk.  (Tenn.)  298.  The 
same  construction  was  had  in  a  case 
where  it  plainly  appeared  to  be  the 
intention  of  the  grantor.  See,  Rober- 
son  V.  Wampler,  104  Va.  380,  51  S. 
E.   835. 

11  The  several  members  of  a  firm 
cannot  be  regarded,  in  the  view  of 
a  court  of  law,  as  holding  real  estate 
as  tenants  in  common,  unless  it  be 
conveyed  to  them,  as  such,  by  name. 
Upon  this  point,  however,  there  is 
some  conflict  in  the  decisions.  While 
the  text  states  the  general  rule  it 
was    held    in    Kentucky    Coal    Co.    v. 


Sewell,  249  Fed.  840,  that  a  deed  to  a 
partnership,  composed  of  two  persons, 
under  the  firm  name  of  one  of  them 
' '  and  Co., ' '  would  convey  title  to 
the    partners   as   tenants    in    common. 

12  Arthur  v.  Webster,  22  Mo.  378; 
Winter  v.  Stock,  29  Cal.  407;  Gos- 
sett  V.  Kent,  19  Ark.  607;  Barnott 
V.   Laehman,   12   Nev.   361, 

l3Murry  v.  Blackledge,  71  N.  C. 
492;  Morse  v.  Carpenter,  19  Vt.  614; 
Menage  v.  Burke,  43  Minn.  211,  45 
N.   W.   155. 

14  Cooper  V,  Newton,  68  Ark.  157, 
56  S.  W.  867. 

15  Menage  v.  Burke,  43  Minn.  211; 
and  see,  Kelley  v.  Bourne,  15  Oreg. 
476;  Cole  v.  Mette,  65  Ark,  506,  47 
S.   W.  407, 

16  Putnam  v.  Bicknell,  18  Wis.  3.33; 
Dale  V.  Lincoln,  62  111.  22;  Sherman 
V.  Hogland,  54  Ind.  578. 

17Staak  V.  Sigelkow,  12  Wis.  234; 
but  see  Crawford  v.  Spencer,  8  Cush. 
(Mass.)    418. 

18  Peabody  v.  Brown,  10  Gray 
(Mass.)    45. 


§  176]  FORMAL  PARTS  OF  DEEDS.  183 

view  of  the  whole  instrument  the  grantee  is  pointed  out,  the  grant 
will  not  fail,  even  though  the  name  of  baptism  be  not  given  at  all.^® 

"When  two  persons  bear  the  same  name  any  designatory  quality 
mentioned  in  the  deed  should  be  shown,  as  "Jr.," 2**  "2d,"  etc., 
and  for  the  purpose  of  more  certain  identification  it  is  often  well 
to  add  the  residence  of  the  parties  if  given.  If  father  and  son  bear 
the  same  name,  unless  explained,  the  grant  will  be  taken  as  one  to 
the  father.2i 

No  person  can  take  a  present  estate  under  a  deed  unless  named 
therein  as  a  party,  and  the  habendum  can  never  introduce  one  who 
is  a  stranger  to  the  premises  to  take  as  grantee,^^  though  he  may 
take  by  way  of  remainder,  but  where  the  grantee's  name  has  been 
omitted  in  the  premises,  if  the  habendum  be  to  him  by  name,  his 
heirs,  etc.,  he  takes  as  a  party,  and  the  defect  is  cured.^^  Far  less 
strictness  is  required  as  to  capacity,  etc.,  in  grantees  than  is  ob- 
served in  case  of  grantors,  and  few  of  the  disabilities  which  encom- 
pass the  latter  are  applicable  to  the  former.  Coverture,  infancy, 
lunacy,  etc.,  form  no  bar  to  the  grant,  but  as  a  rule,  to  be  valid,  it 
must  be  to  a  corporation,  or  to  some  certain  person  named,  who  can 
take  by  force  of  the  grant,  and  hold  in  his  own  right,  or  as  trustee.''* 

§  176.  Nature  of  the  Instrument.  After  the  recital  of  the  par- 
ties, the  next  inquiry  of  importance  is  the  nature  of  the  convey- 
ance, which  can  be  ascertained  only  from  a  general  survey  of  the 
entire  instrument.  The  name  of  the  document  should  be  written 
on  the  right  hand  margin  of  the  sheet  in  the  manner  hereafter 
shown,  and  should  be  sufficiently  full  to  indicate  its  true  purport. 
The  name  of  the  particular  kind  of  deed  has,  of  course,  no  legal 
efficacy  or  value,  but  serves  as  a  fitting  introduction  to  the  synopsis, 
and  apprises  the  reader  at  the  outset  of  its  import  and  character. 
"Where  the  deed  is  made  with  general  warranty  it  is  described  in 
the  abstract  as  a  "Warranty  Deed."  This  will  be  a  sufficient 
reference  to  the  covenant.  So,  too,  if  the  instrument  is  a  quit 
claim,  and  is  so  described,  no  necessity  will  exist  for  getting  out 

18  Newton  v.  McKay,  29  Micli.  1 ;  as  well  as  family  name.     Padgett  v. 

and  see  Scanlan  v.  Wright,  13  Pick.  Lawrence,  10  Paige  (N.  Y.),  170. 

(Mass.)    523.  21  Stevens  v.  West,  6  Jones  (N.  C), 

20  The  word  "Jr."  forms  no  part  49;    Padgett  v.    Lawrence,    10   Paige 

of  the  name  of  the  person  to  whose  (N.  Y.),  170. 

name    it    is    usually    affixed,    but    is  22  Blair  v.  Osborne,  84  N.  0.  417; 

merely  descriptive   of   the  person  in-  Hornbeck  v.  Westbrook,  9  Johns.  73. 

tended,    and    is    usually    adopted    to  23  Lawe  v.  Hyde,  39  Wis.  346. 

designate   the   son   where   father  and  24  Jackson  v.   Gary,  8  Johns.   385; 

son  both  have  the  same  Christian  name  Newton  v.  McKay,  29  Mich.  1. 


184  ABSTRACTS   OP   TITLE.  [§  176 

the  operative  words  of  conveyance  or  other  recitals.  If  the  instru- 
ment departs  from  conventioiial  forms  it  may  be  described  simply 
as  a  "Deed,"  and  so  much  of  the  special  matter  siiould  be  given 
as  will  enable  counsel  to  determine  its  specific  character  and  opera- 
tive effect.  If  the  nature  of  the  instrument  will  not  permit  its 
classification  as  a  deed,  agreement,  or  other  common  form  of  desig- 
nation it  may  be  described  simply  as  "instrument." 

§  177.  Date  of  Instrument.  The  date  of  the  execution  of  the 
deed  should  follow  next  in  order,  and  maj^  consist  simply  of  a  line 
embodying  the  fact,  as, 

Dated  July  10,  1882, 

or.  if  without  date,  a  statement  to  that  efTeet.  The  date  is  no  part 
of  the  substance  of  a  deed,^  nor  is  it  essential  to  its  validity,''^  tho 
conveyance  taking  effect  only  from  its  delivery ,2'  hut  the  date  may 
become  important  in  determining  questions  of  priority,^'  or  in 
ascertaining  whether  all  the  statutory  requirements  at  the  time  of 
the  execution  of  the  deed  have  been  complied  Avith.  The  date  of 
a  deed,  in  the  absence  of  other  proof,  is  presumed  to  be  the  true 
date  of  its  execution,'^^  as  well  as  delivery ,^*>  and  is  the  time  from 
which  title  in  the  grantee  should,  in  most  eases,  be  computed." 

As  deeds  are  now  drawn,  the  date  usually  forms  the  initial  re- 
cital of  the  premises,'^  though  it  may  frequently  be  found  in  the 
testimonium  clause,^*  and  in  ease  of  discrepancy  the  latter  should, 
it  seems,  be  taken  as  the  true  date.^*  Though  the  expressed  date 
of  a  deed  is  immaterial  to  its  operation  and  effect,^^  and  may  under 
ordinary   circumstances  be   contradicted   or   explained,   yet   when 

25  Jackson  v.  Schoonmaker,  2  32  This  will  always  be  the  case 
Johns.  230;  Meach  v.  Fowler,  14  Ark.  where  the  deed  is  in  form  an  inden- 
29:   Costigan  v.  Gould,  5  Denio,  290.  ture. 

26  Jackson  v.  Bard,  4  Johns.  230 ;  33  In  deeds-poll  the  date  always  ap- 
Blake   v.  Fish,   44   111.    302;    Thomp-  pears  in  the  testatum. 

son  V.  Thompson,  9  Ind.  323.  84  Morrison    v.    Caldwell,    5    T.    B. 

27  Thatcher  v.  St.  Andrew's  Church,  Mon.  (Ky.)  436.  In  formally  drawn 
37  Mich.  264;  Whitaker  v.  Miller,  83  deeds  where  the  date  is  stated  in  the 
111.  381.  premises    the    testimonium    recital    is 

28  See  title  "delivery."  usually  "the  day  and  year  first  above 
29Dar8t  V.  Bates,  51  HI.  439;  Smith       written"  without  specific  mention. 

V.  Porter,  10  Gray,  66.  36  Harrison  v.  Trustees  of  Phillips' 

80  Hardin  v.  Crnte,  78  111.  .^53.  Academy,  12  Mass.  456. 

81  Breckenridge    v.    Todd,    61     Am. 
Dec.  83. 


§  179]  FORMAL  PARTS  OF  DEEDS.  185 

taken  in  connection  with  conditions  or  stipulations  annexed  to  the 
grant,  it  may  become  important  m  fixing  the  time  for  the  per- 
formance of  any  act  by  grantor  or  grantee,  and  in  such  case  can 
not  be  varied  by  paroi.^^  Should  the  instrument  be  without  date, 
the  date  of  acknowledgment  may  be  presumed  to  be  also  that  of 
execution  and  delivery.*' 

§  178.  Registration.  For  convenience,  the  particulars  of  regis- 
tration should  follow  the  date,  though  many  examiners  prefer  to 
insert  them  at  the  conclusion  of  the  synopsis  as  a  proper  logical 
sequence.  On  the  perusal  of  the  abstract,  however,  these  facts  are 
best  read  together,  and,  to  facilitate  the  labors  of  counsel,  should 
be  placed  as  first  indicated.  The  only  material  facts  concerning 
registration  are,  the  date  of  record  and  the  volume  and  page  on 
which  the  instrument  is  recorded,  which  should  be  stated  briefly 
and  concisely.  In  case  of  re-reeord,  the  date,  volume  and  page  of 
the  former  record  may  be  given  after  the  synopsis  as  a  supple- 
mental foot-note.*®  As  the  general  subject  of  registration  has 
already  been  quite  fully  noticed,  but  little  need  be  further  said  in 
this  connection. 

The  date  of  record  is  important  in  passing  on  questions  of  prior- 
ity, particularly  when  the  instrument  is  itself  without  date,  and 
it  acquires  an  additional  importance  in  those  States  where  by 
statute,  it  must  be  recorded  within  a  specified  time  to  secure  pref- 
erence over  other  conveyances  or  against  creditors. 

Whenever  practicable,  it  is  recommended  that  all  information 
be  taken  direct  from  the  records,  but  occasionally  it  will  happen 
that  through  the  tardiness  of  the  enrolling  officers,  deeds,  and  other 
instruments  are  not  actually  transcribed  until  long  after  they  have 
been  filed  for  record.  In  this  event  the  examiner,  in  order  to  fully 
cover  the  period  of  his  search,  must  have  recourse  to  the  original 
documents,  but  it  is  further  recommended  that  after  the  synopsis 
of  all  such  documents,  the  examiner  append  the  following : 

Note. — The  particulars  of  the  foregoing  conveyance  taken  from 
the  original  instrument. 

§  179.  Consideration.  The  consideration  named  in  the  deed 
next  follows,  and  when  consisting  of  the  ordinary  acknowledgment 

86  Joseph      V.      Biglow,      4      Gush.  88  For  a  precedent  see  §  238. 
(Mass.)   82. 

87  Gorman  v.  Stanton,  5  Mo.  App. 
585. 


186  ABSTRACTS   OP   TITLE.  [§  185 

of  the  receipt  of  mouc}',  may  be  expressed  in  a  simple  statement 
of  the  amount  mentioned ;  as 

Consideration,  $  J, 000.00. 

The  consideration  recital,  under  the  current  of  modern  decisions, 
has  lost  its  former  importance  and  not  infrequently  fails  to  denote 
the  true  motive  of  the  conveyance.  Wiien  only  a  nominal  sum  is 
inserted,  coupled  with  other  considerations  not  of  a  pecuniary 
nature,  as  "love  and  affection,"  marriage,  performance  of  specific 
acts,  etc.,  the  recital  should  be  given  in  full,  in  the  identical  lan- 
guage of  the  instrument,  and  verified  by  quotation  marks.  When 
the  expressed  consideration  amounts  to  a  condition,  precedent  or 
subsequent,  this  may  become  of  primary  importance,  while  it  should 
always  be  stated  with  sufficient  clearness  to  enable  counsel  to  de- 
termine whether  same  is  sufficient  to  sustain  the  conveyance. 
Should  the  instrument  be  without  consideration,  this  fact  should 
also  be  noted  in  the  line. 

No  consideration  expressed. 

§  180.  Effect  of  Consideration.  No  consideration  was  required 
in  conveyances  under  tlie  common  law,  the  homage  and  fealty 
incident  thereto  being  deemed  sufficient,  but  became  necessary 
under  the  statute  of  uses.^'  As  a  general  proposition,  any  val- 
uable consideration,  acknowledged  or  proved,  is  sufficient  to  sus- 
tain a  convej'ance  of  lands,***  and  the  acknowledgment  in  the  deed 
of  payment  thereof  is  so  far  conclusive  of  the  fact  as  to  give  effect 
to  the  conveyance.*^  A  deed  executed  by  the  party  in  whom  the 
title  is  vested,  and  expressing  a  valuable  consideration,  never 
needs,  as  against  him  or  those  claiming  under  him,  or  as  against 
a  stranger,  to  be  supported  by  showing  what  other  reason,  in  addi- 
tion to  the  will  of  the  party,  led  to  its  execution.*^  Nor  is  it  essen- 
tial to  the  validity  of  a  conveyance  that  the  consideration  should 
be  expressed,*^  and  a  deed,  if  properly  drawn,  will  pass  the  title, 

39  At    the    present    time    the    only  Fuller,  46  Me.  141 ;  Graves  v.  Graves, 

practical  operation  of  the  expression  29  N.  H.  129. 

of  a  consideration  or  the  introduction  40  Jackson  v.  Leek,  19  "Wend.  339. 

of  a  clause   reciting  a  consideration,  41  Ochiltree  v.  McClurg,   7  W,  Va. 

is  to  prevent  a  resulting  trust  to  the  232;  Bobb  v.  Bobb,  89  Mo.  411. 

grantor  and  estop  him  from  denying  42  Rockwell  v.  Brown,  54  N.  Y.  210; 

the  making  and  effect  of  the  deed  for  Merrill  v.  Burbank,  23  Me.  538. 

the  uses  therein  declared.     Meeker  v.  43  Jackson      v.      Dillon,      2      Overt 

Meeker,   16  Conn.   383;    Goodspeed  v.  (Tenn.),  261;  "Wood  v.  Beach,  7  Vt. 


§  181]  FORMAL  PARTS  OP  DEEDS.  187 

whatever  it  may  be,  without  reference  to  the  consideration  paid.** 
Where  parties  contract  by  deed,  a  consideration  will  usually  be 
implied  from  the  seal,*^  which  as  a  rule  imports  consideration,*' 
and  it  has  been  held  that  an  instrument  in  form  a  conveyance  and 
duly  signed,  whether  under  seal  or  not,  imports  a  consideration,*'' 
while  a  voluntary  conveyance,  without  any  consideration,  either 
good  or  valuable,  is  valid  and  binding  between  the  parties  and 
their  privies,** 

As  against  the  grantor,  and  those  in  privity  with  him,  the  ac- 
knowledgment in  the  deed  of  payment  of  the  purchase  price  is  his 
receipt  or  admission,  which  on  proof  of  the  deed  will  be  considered 
as  proved,*^  Such  acknowledgment,  however,  is  not  conclusive, 
being  merely  by  way  of  recital,  and  though  it  affords  prima  facie 
evidence  of  the  fact,  yet,  like  any  other  receipt,  it  may  be  inquired 
into,^*^  and,  for  the  purpose  of  recovering  the  consideration,  the 
grantor  may  still  show  that  it  was  never,  in  fact,  paid,^^  but  not 
to  invalidate  or  defeat  the  operation  of  the  deed.^^ 

As  against  the  creditors  of  the  grantor  such  recital  is  but  hear- 
say, and  no  evidence  of  the  fact  of  payment,^^  but  no  one  except 
a  creditor  can  avail  himself  of  the  objection  that  the  deed  was  given 
without  consideration.^* 

§181.  Words  of  Grant.  The  operative  words  of  grant  are 
found  in  the  premises  and  usually  immediately  follow  the  consid- 
eration recitals,  in  which  order  they  should  also  appear  in  the 
abstract  whenever  it  may  be  desirable  to  set  them  forth  fully.  It  is 
a  familiar  rule  with  conveyancers,  that  to  vest  a  title  to  land 
the  deed  must  contain  apt  words  of  grant,  release  or  conveyance,** 

522;  Boynton  V.  Eees,  8  Pick.  (Mass.)  60  Huebseh  v.   Scheel,   81   111.   281; 

329.  Parker  v.  Toy,  43  Miss.  260 ;  Webb  v. 

44Fetrow  v.    Merriweather,   53   III.  Peele,  7  Pick,  (Mass.)  247. 

278;  Laberee  v.  Carleton,  53  Me.  211.  61  Barter  v.  Greenleaf,  65  Me.  405; 

46  Ross  V.  Sadgbeer,  21  Wend.  166;  Paige   v.    Sherman,    6   Gray    (Mass.), 

Evans  v.  Edwards,  26  111.  279;  Croker  511;   Grout  v.   Townsend,  2  Hill    (N. 

V.  Gilbert,  9  Cusli.  (Mass.)   131.  Y.)  554. 

46  Hunt  V.  Johnson,  19  N.  Y.  279;  52  Bassett  v.  Bassett,  55  Me.  127; 
Croft  V.  Bunster,  9  Wis.  503;  Bush  v.  Newell  v.  Newell,  14  Can.  206;  Eich- 
Stevens,  24  Wend.  (N.  Y.)  256.  ardson  v.  Clow,  8  111.  App.  91, 

47  Ruth  V.  King,  9  Kan.  17.  This  63  Redfield  Mfg.  Co.  v.  Dysart,  62 
in  the  absence  of  statutory  require-  Pa.  St.  62;  Rose  v.  Taunton,  119 
ments  to  the  contrary.  Mass.   99;    Houston    v.   Blackman,   66 

48Fouby    v.    Fouby,    34    Ind.    433;       Ala.  559. 
Wallace  v.  Harris,  32  Mich.  380;  La-  64  Hatch  v.  Bates,  54  Mo.  136. 

beree  v.  Carleton,  53  Me.  211.  65  Johnson  v.  Bantock,  38  111.  Ill; 

49  Baylies    v,    Williams,    6    Coldw. 
(Tenn.)  440. 


188  ABSTRACTS   OP   TITLE.  [§  181 

and,  so  faith  rally  has  this  been  followed,  it  is  not  uncommon  to  meet 
with  deeds  containing  as  manj^  as  seven  or  even  ten  operative 
words  of  grant.  The  effect  of  these  words  is  a-  question  of  con- 
struction to  be  governed  and  decided  by  the  law  of  the  State  in 
which  the  land  is  situate,''®  and  no  general  rule  can  be  formulated 
for  the  guidance  of  the  practitioner,  the  laws  of  the  different  States 
being  widely  divergent.  The  words  of  grant  of  most  frequent 
occurrence  are  "grant,"  bargain  and  sell."  In  many  of  the 
States,  wlien  not  limited  by  express  words,  they  are  construed  as 
covenants,^®  while  in  other  States  such  a  conveyance,  without 
more,  would  be  a  mere  quit-claim  and  inoperative  to  convey  an 
after-acquired  title,^®  or  warrant  that  conveyed.®''  Where  the  deed 
is  without  covenants,  or  contains  only  special  or  limited  covenants, 
the  words  of  grant  should  be  set  forth  immediately  preceding  the 
description.  Wlien  the  usual  covenants  of  seizin,  warranty,  etc., 
appear  in  the  deed  they  are  immaterial,  and  may  be  omitted.  In 
such  eases  the  word  "convey"  will  be  sufficient  to  indicate  the 
grant.®^ 

Technical  words  of  grant  possess  little  of  their  former  efficacy, 
though  it  is  still  true  that  to  constitute  a  conveyance  there  must 
be  sufficient  Avords  slijowing  an  intention  to  grant  an  estate,®^  yet 
every  part  of  the  instrument  may  be  resorted  to  for  the  purpose 
of  ascertaining  its  true  meaning  and  the  intention  of  the  parties,®' 
and,  generally,  any  writing  that  sufficiently  identifies  the  parties, 
describes  the  land,  acknowledges  a  sale  of  vendor's  rights  for  a 
valuable  consideration,  and  is  signed,  sealed  and  delivered,  is  a 
good  deed  of  bargain  and  sale,®*  and,  if  complete  in  other  respects, 
has  been  held  to  constitute  a  valid  conveyance  even  though  all 
words  of  gi'ant  are  omitted.®^ 

Catlin  V.   Ware,   9   Mass.   218;    Ham-  in  the  absence  of  express  covenants, 

mclman     v.     Mounto,     87     Ind.     178;  to   constitute   a   warranty   during   the 

Brown  v.  Manter,  21  N.  H.  528.  life  of  the  grantor.     Dow  v.  Lewis,  4 

66McGoon   v.    Scales,    9    Wall.    23;  Gray  (Mass.),  468. 

Clark  V.   Graham,  6  Wheat.   577.  61  See     precedent     of     abstract     of 

67  The    word    "convey"    is    equiv-  warranty  deed  in  §217. 

alent  to  "grant."    Lambert  v.  Smith,  62  McKinney  v.  Settles,  31  Mo.  541; 

9  Or.  185.  Brewton    v.    Watson,    67    Ala.    121; 

68Brodic  v.  Watkins,  ?,\   Ark.  ;]19;  Brown  v.  Manter,  21  N.  H.  628. 

Hawk    V.    McCullough,    21     111.     220.  63  Saunders  v.  Hanes.  44  N.  Y.  35:5 ; 

This  construction  is  usually  made  un-  Callins  v.  Lavalle,  44  Vt.  230;  Amcr- 

der  peculiar  statutory  provisions.  ican  Emigrant  Co.  v.  Clark,  62  Iowa, 

69  Butcher  v.   Rogers,   60   Mo.   138;  182. 

Nicholson  v.  Caress,  45  Ind.  479.  64  Chiles  v.  Conley  's  Heirs,  2  Dana 

60Taggart  v.   Risley,  4  Oreg.   235.  (Ky.),  21. 

The  word  ' '  give ' '  was  formerly  held,  65  Bridge    v.    Wellington,    1    Mass. 


§  182]  FORMAL  PARTS  OF  DEEDS.  189 

§  182.  Words  of  Inheritance  and  Limitation.  Closely  allied  to 
the  foregoing  are  the  words  of  inheritance  and  limitation,  once  of 
the  very  essence  of  the  deed,^^  but  now,  by  reason  of  sweeping  stat- 
utory changes,  comparatively  without  value  or  legal  effect.  Though 
invariably  inserted  by  the  conveyancer,  words  of  inheritance  are 
no  longer  necessary  to  create  or  convey  a  fee,  and,  as  a  rule,  every 
grant  of  lands  will  pass  all  the  estate  or  interest  of  the  grantor, 
unless  a  different  interest  shall  appear  by  express  terms  or  neces- 
sary implication, 6'  the  question  of  the  estate  transferred  being 
determined  rather  by  the  end  sought  to  be  attained  by  the  grantor, 
than  by  the  language  employed.^'  The  usual  and  ordinary  words 
for  conveying  an  estate  in  fee  simple  are  "heirs,"  or  "heirs  and 
assigns  forever." 

The  rule  in  Shelly 's  case,  with  its  refinements  and  subtilties,  is 
not  recognized  in  some  States,  and  has  but  a  partial  effect  in  others, 
although  its  influence  is  still  manifest  in  nearly  every  State.  As 
a  wide  difference  of  interpretation  is  displayed  in  the  decided 
eases,  it  is  difficult  to  prescribe  a  definition  of  the  rule  that  shall 
be  sufficiently  certain.  Generally,  if  an  estate  of  freehold  be  lim- 
ited to  the  ancestor  for  life,  and  the  remainder  to  his  heirs,  either 
mediately  or  immediately,  the  first  taker  takes  the  whole  estate; 
if  it  be  limited  to  the  heirs  of  his  body,  he  takes  a  fee  tail ;  if  to  his 
heirs  generally,  a  fee  simple.  The  words  "heirs"  or  "heirs  of  the 
body"  in  such  case,  are  words  of  limitation  and  not  of  purchase.®^ 
The  rule  in  Shelly 's  case  is,  however,  at  most  a  technical  rule  of 
construction,  and  must,  as  a  general  proposition,  give  way  to  the 
clear  intent  of  the  donor  when  that  intention  can  be  ascertained 
from  the  instrument  in  which  the  words  supposed  to  be  of  limitation 
are  used.'''^ 

Whenever  the  words  of  inheritance  depart  from  the  usual  form 
for  granting  a  fee,  and  seek  to  create  a  vested  or  contingent  re- 

219.      This    case    has    been    severely  69  Butler    v.    Huestis,    68    111.    594; 

criticised  in  subsequent  decisions  and  consult    Poster    v.     Shrevc,     6     Bush 

frequently  rejected.  (Ky.),  519;    Bradford  v.  Howell,  42 

66  Jackson  v.  Meyers,  3  John.  388.  Ala.   422;   Forrest  v.   Jackson,   56  N. 

67Merritt   v.   Disney,   48   Md.   344;  H.  357;   Smith  v.  Block,  29  Ohio  St. 

Beecher  v.  Hicks,  7  Lea  (Tenn.)  207;  488;    King  v.    Rea,   56   Tnd.    1.      En- 

Eiseley  v.  Spooner,  23  Neb.  470.  tails,  when   permitted,  are   limited  to 

68  Hawkins  v.  Champion,  36  Md.  83;  the  first  degree  only,  that  is,  the  first 

Kirk  V.  Burkholtz,  3   Tenn.  Ch.  425;  grantee  takes  an  estate  for  life  while 

Lehndorf  v.  Cope,  122  111.  317.     This  the    remainder   passes   in    fee   to    the 

is  now  a  general  statutory  rule.     In  second  taker.     See,  Butler  v.  Huestis, 

a   few   States,   however,   the   common-  68  111.  594. 

law  rule  still  obtains  and  words  of  in-  70  Belslay  v.  Engel,  107  111.  182. 
heritance  are  necessary  to  pass  a  fee. 


190  ABSTRACTS   OP   TITLE.  [§  182 

mainder  in  some  person  other  than  the  grantee  named,  the  only 
safe  method  for  the  examiner  is  to  set  forth  the  granting  clause 
verbatim,  and  as  a  further  precaution  the  habendum  may  also  be 
shown.  To  create  an  estate  tail  or  remainder,  there  must  be  the 
use  of  technical  words  designating  a  class  of  heirs  to  take  in  suc- 
cession, or  language  disclosing  a  clear  intent  to  that  effect^*  The 
word  "children,"  though  frequently  used,  is  usually  a  word  of 
purchase,  requiring  strong  language  to  change  it  into  a  word  of 
limitation.  In  the  preparation  of  abstracts  these  questions  are  too 
frequenth'^  lost  sight  of  by  the  examiner,  who  fails  to  give  to 
them  and  other  seemingly  minor  details,  the  attention  their  impor- 
tance deserves, 

§  183.  Description  of  Property.  After  the  parties  to  the  eon- 
vej-ance,  the  description  of  the  thing  or  subject-matter  conveyed 
is  the  great  essential ,''^^  but  for  convenience,  and  following  the 
orderly  parts  of  the  deed,  it  should  appear  immediately  after  the 
words  of  conveyance.  In  abstracting  a  deed  it  is  customary  to 
condense  the  introductory'-  sentences  of  the  description,  which  allude 
generally  to  the  situs  of  the  land  in  a  given  county  and  State,  but 
from  this  point,  or  after  the  words  "to  wit,"  the  entire  description, 
as  found  in  the  deed,  should  be  set  forth  verbatim.'^  It  is  the 
custom,  also,  of  many  examiners,  to  refer  for  descriptions  to  the 
caption  of  the  abstract,  or  to  other  instruments  in  the  chain  con- 
taining the  same  or  substantially  the  same  description ;  a  practice 
as  slovenly  as  it  is  dangerous,  and  one  strongly  to  be  reprehended. 
Both  in  preparing  the  abstract  and  in  passing  upon  the  title,  the 
description  should  in  every  case  be  compared  with  the  caption, 
and  any  deviation  therefrom,  either  in  form  or  substance,  carefully 
noted. 

§  184.  Description — Sufficiency.  Every  deed  of  conveyance,  in 
order  to  transfer  title,  must,  either  in  terms  or  by  reference  or 
other  designation,  give  such  description  of  the  subject-matter  in- 
tended to  be  conveyed  as  will  be  sufficient  to  identify  the  same 
with  reasonable  certainty.'*  If  the  description  is  too  indefinite  to 
convey  anything,  or  too  vague  to  permit  of  location,  then  the  deed 
lacks  one  of  the  essential  elements  of  a  conveyance.''^    It  is  not  es- 

71Middleton    v.    Smith,    1     Coldw.  74  Berry    v.    Derwart,    55    Md.    66; 

(Tenn.)    144.  Long  v.  Wagoner,  47  Mo.  178;  Barker 

T2Wliitaker  v.   Miller,  83   111.   381.  v.  By.  Co.,  125  N.  C.  596. 

73  For   a    precedent   of    description  76  Barker    v.    By.    Co.,    125    N.    C. 

see  §  217.  596. 


§  186]  FORMAL  PARTS  OF  DEEDS.  191 

sential,  however,  that  the  deed  should  on  its  face  ascertain  the 
limits  or  quantity  of  the  particular  tract  conveyed.  It  will  be  suffi- 
cient if  it  refers  to  certain  known  objects  or  things,  and  provides 
definite  means  by  which  the  land  may  be  readily  ascertained  and 
known ;  '^  where  words  of  general  description  only  are  used,  oral 
evidence  may  be  resorted  to  for  the  purpose  of  ascertaining  the 
particular  subject-matter  to  which  they  apply.''''  Any  description 
by  which  the  identity  of  the  property  intended  to  be  conveyed  is 
established,  will  be  sufficient,''''  and  a  description  not  sufficiently 
certain  in  itself  may  be  made  so  by  reference  to  other  deeds  in 
which  it  is  sufficient.'''® 

§  185.  Description — Identification.  Defects  of  description  are 
sometimes  cured  by  the  acts  of  the  parties  after  the  conveyance  has 
been  made.  As,  where  the  land  intended  to  be  conveyed  is  not 
identified  in  the  deed,  the  parties  may  afterward  survey  or  stake 
out  a  tract,  and,  if  the  grantee  takes  possession  of  such  tract,  this, 
it  is  said,  ascertains  the  grant  and  gives  effect  to  the  deed.'**  But 
such  a  proceeding,  as  a  rule,  can  only  be  shown  by  matter  in  pais, 
and  hence  does  not  affect  the  conclusions  of  the  examiner  deduced 
from  an  inspection  of  the  record.  Unless  the  parties  have  recorded 
the  survey  or  minutes  of  location  the  examiner  is  under  no  duty 
to  note  the  fact,  even  though  he  may  be  cognizant  of  it,  and  the 
opinion  of  counsel  should  conform  to  the  facts  of  record  only.  If 
parties  desire  to  fix  and  perpetuate  their  rights  in  a  specific  parcel 
of  land  recourse  should  be  had  to  the  courts  or  to  the  public  rec- 
ords. 

§  186.  Description — Construction.  It  is  a  rule  of  construction 
as  to  the  description  of  the  land  found  in  the  premises  of  a  deed, 
that  the  least  certain  and  material  parts  must  give  way  to  the  more 
certain  and  material.  Quantity  is  never  allowed  to  control  courses 
and  distances,'^  and  courses  and  distances  must  yield  to  fixed  mon- 

76  Coats  V.  Taf  t,  12  Wis.  388 ;  held  that  such  deed  was  not  void  for 
Dwight  V.  Packard,  49  Mich.  614.  uncertainty  if  the  parties,  after  the 

77  Coleman  v.  Improvement  Co.,  94  conveyance,  marked  out  a  parcel  of 
N,  Y.  229.  ^and  of  which  the  grantee*  took  pos- 

78  Smith  V.  Crawford,  81  111.  296;  session  with  the  consent  of  the  grant- 
Allen  V.  Bates,  6  Pick.  460.  or.    Simpson  v.  Blaisdell,  85  Me.  199; 

79Eussell    V.    Brown,    41    111.    184;  and  see,  Herrick  v.  Morrill,  37  Minn. 

Credle  v.  Hays,  88  N.  C.  321.  250. 

80  Thus,  where  a  deed  was  made  for  81  Bishop   v.   Morgan,   82   111.   352; 

"one-half    acre    of    land    near     the  Saunders  v.  Schmaelzle,  49  Cal.  59. 
wharf,"  describing  the  wharf,  it  was 


192  ABSTRACTS    OF    TITLE.  [§186 

iimouts  and  natural  objects  also  referred  to  therein. ^^  But  where 
the  monuments,  if  once  existing,  are  gone,  and  the  place  where 
they  originally  stood  cannot  be  ascertained,  the  courses  and  dis- 
tances, when  explicit,  must  govern  ;8^  and  where  the  boundaries 
are  doubtful,  quantity  often  becomes  a  controlling  consideration.'* 
Nor  will  the  rule  that  monuments,  natural  or  artificial,  rather 
than  courses  and  distances,  control  in  the  construction  of  a  convey- 
ance, be  enforced  when  the  instrument  would  thereby  be  defeated, 
and  when  the  rejection  of  a  call  for  a  monument  would  reconcile 
other  parts  of  the  description  and  leave  enough  to  identify  the 
land.'^  Where  a  deed  calls  for  a  natural  object  and  the  line  gives 
out  before  reaching  it,  the  line  must  be  extended  to  the  natural 
object,  and  the  distance  disregarded ;  ^^  but  where  no  monuments 
are  referred  to  and  none  are  intended  to  be  afterward  designated, 
the  distance  stated  in  the  grant  must  govern  the  location.*''^  An 
erroneous  description  of  land  by  numbers  will  not  control  other 
descriptive  particulars  which  indicate  the  land  with  certainty.** 

Where  lines  are  run  to  fix  the  boundaries  of  a  tract,  with  special 
reference  to  the  points  of  the  compass,  they  will  generally  be  con- 
strued according  to  their  technical  signiticance.  Thus,  a  line  run- 
ning "northerly"  will  be  construed  to  mean  due  north,  and  so  of 
the  other  cardinal  points.  These  terms  may  be  controlled  or  qual- 
ified by  other  words  of  description  used  in  connection,  but  in  case 
there  is  nothing  to  suggest  a  dift'erent  construction  they  must  be 
given  their  technical  meaning.*^ 

Where,  as  is  often  the  case,  the  conveyancer,  from  an  over  anx- 
iety to  identify  the  property,  makes  two  descriptions,  the  one,  as 
it  were,  superadded  to  the  other,  the  one  description  being  com- 
plete and  sufficient  in  itself,  the  other  incorrect,  the  incorrect  de- 
scription, or  feature,  or  circumstances,  may  be  rejected  as  sur- 
plusage, and  the  complete  and  correct  description  allowed  to  stand 
alone.®°  This  is  a  rule  of  law,  which  counsel  may  employ  in  passing 
the  title,  but  the  abstract  should  show  both  descriptions. 

88Dupont    V.  Davis,   30   Wis.    170;  88Bradshaw   v.    Bradbury,    64    Mo. 

Sanders    v.    Eldridge,    46    Iowa,    34;  334;  Montgomery  v.  Johnson,  31  Ark. 

Cunningham  v.  Curtis,  57  N.  H.  157.  62. 

83  Drew -v.    Smith,   46   N.    Y.    204;  89  Pratt  v.  Woodward,  32  Cal.  220. 

Clark  V.  Wethy,  19  Wend.  320.  90Kruse    v.    Wilson,    79    111.    233; 

84Winan3  v.  Cheny,  55  Cal.  567.  Myer  v.  Ladd,  26  111.  415;   Wade  v. 

86  White    V.    Luning,    93    U.    S.    (3  Deray,  50  Cal.  376;   Credle  v.  Hays, 

Otto)  515.  88   N.   C.    321;    Bray    v.    Adams,   114 

86  Strickland    v.    Draughan,    88    N.  Mo.  486. 
C.  315. 

87Negbauer  v.  Smith,  44  N.  J.  L. 
672. 


§  188]  FORMAL  PARTS  OF  DEEDS.  193 

It  must  be  remembered,  however,  that  notwithstanding  the  ut- 
most liberality  is  allowed  in  the  construction  of  descriptions,  so  as, 
if  possible,  to  effectuate  the  intention  of  the  parties,  nothing  passes 
by  a  deed  except  what  is  described  in  it,  whatever  the  intention 
of  the  parties  may  have  been,  and  extrinsic  evidence  is  inadmissible 
to  make  the  deed  operate  upon  land  not  embraced  in  the  descriptive 
words.^^ 

§  187.  Special  Recitals.  Immediately  following  the  description 
are  usually  found  the  special  recitals,  reservations,  exceptions,  con- 
ditions, etc.,  though  in  forms  specially  prepared  they  may  also  be 
found  in  that  part  of  the  deed  technically  known  as  the  reddendum 
and  to  insure  certainty  all  of  the  instrument  from  the  habendum 
to  the  testimonium  clause  should  be  carefully  read  by  the  examiner 
when  compiling  the  abstract.  All  special  matter,  including  recitals, 
references,  exceptions,  reservations,  conditions,  limitations,  etc., 
should  be  set  forth  fully  in  an  orderly  manner  and,  whenever  prac- 
ticable, in  the  identical  language  of  the  deed  and  verified  by  quo- 
tation marks.  When  not  so  treated,  or  where  slight  condensation 
may  be  advantageously  employed,  the  matter  should  be  preceded 
by  a  parenthetical  statement,  to  indicate  that  what  follows  is  a 
transcription  and  not  an  observation  by  the  examiner,  thus: 

"Said  grantor  (it  is  stated). agrees  to,"  etc. 

Recitals  in  deeds  bind  the  parties  thereto,  and  those  claiming  un- 
der them,^2  and  a  grantee  is  chargeable  with  notice  of  facts  recited 
in  a  deed  which  constitutes  a  necessary  part  of  his  chain  of  title,^' 
but  such  recitals  are  not  evidence  against  one  who  holds  title  em- 
anating from  an  independent  source.^ 

§  188.  The  Habendum.  It  is  rarely  that  the  attention  of  either 
examiner  or  counsel  is  called  to  the  habendum  of  a  deed,  which, 
unless  declaring  a  trust,  or  defining  the  limitation  of  an  estate,  may 
be  passed  without  notice  in  the  abstract.  Though  formerly,  like 
many  other  technical  features,  of  great  importance,  it  has  now 
degenerated  into  a  mere  form,^*  and  in  the  statutory  conveyances 

91  Coleman  v.  Improvement  Co.,  94  v.  Morehouse,  22  111.  603;   R.   R.   Co. 

N.  Y.  229.  V.  Kennedy,  70  111.  350. 

92Fisk  V.  Flores,  43  Tex.  340;  La-  94  Lamar   v.    Turner,   48   Ga.   329; 

mar  v.  Turner,  48  Ga.  329.  Kerfoot  v.  Cronin,  105  111.  609. 

93Pringle   v.    Dunn,    37    Wis.   449;  95  4   Kent  Com.   468;    4  Blk.   Com. 

Acer  V.  Wescott,  46  N.  Y.  348;  Bryne  298. 
Warvelle  Abstracts — 13 


194  ABSTRACTS   OF    TITLE.  [§188 

in  use  in  many  of  the  States  is  entirely  omitted.  In  general  the 
liabenduiu  refers  to  the  premises  and  declares  what  estate  the 
grantee  sliall  hold.  It  may  sometimes  enlarge  or  diminish  the  grant, 
when  showing  a  clear  intention  so  to  do,^  but  cannot  perform 
the  office  of  divesting  the  estate  already  vested  by  the  premises, 
and  is  void  if  repugnant  thereto.^"^  Where  the  deed  purports  to 
create  a  vested  or  contingent  remainder,  or  conveys  property  in 
trust,  the  habendum  often  becomes  important,  and  where  no  estate 
is  mentioned  in  the  granting  clause  it  becomes  efficient  to  declare 
the  intention  and  rebut  any  implication  which  would  otherwise 
arise  from  the  omission.  In  such  cases  the  material  clauses  of  the 
habendum  should  be  shown  in  the  abstract. 

§  189.  Exceptions  ajid  Reservations.  Everything  that  re- 
strains, qualities,  reserves  or  subtracts  from  the  grant  or  tiling 
granted,  should  be  shown  on  the  abstract  with  minuteness  of  detail, 
and  to  that  end  it  is  desirable  that  evei-ytliing  in  the  nature  of  an 
exception  or  reservation  be  copied  verbatim.  Both  a  reservation 
and  an  exception  must  be  a  part,  or  arise  out  of  that  which  is 
granted  in  the  deed.  The  difference  is  that  an  exception  is  some- 
thing already  existing  which  is  taken  back  or  out  of  the  estate 
granted,  while  a  reservation  is  something  newly  created  and  issu- 
ing out  of  what  is  granted.^®  Thus,  an  exception  is  always  a  part 
of  the  thing  granted,  and  of  a  thing  in  being. ^^  A  reservation  is 
of  a  thing  not  in  being,  but  is  newly  created  out  of  the  land  or 
property  granted.^ 

The  usual  operative  words  to  create  an  exception  are,  "saving 
and  excepting,"  etc.,  but  the  terms  indicative  of  either  method  are 
often  used  indiscriminately  and  frequently  in  conjunction,  as  "ex- 
cepting and  reserving,"  etc.,  and  the  difference  between  the  two 
is  so  obscure  in  many  cases  that  it  has  not  been  observed.'^  In  all 
cases  the  operative  words  should  be  shown. 

Although  there  is  a  technical  distinction  between  the  terms,  yet 
where  "reserving"  is  used  with  evident  intent  to  create  an  ex- 
ception, effect  should  be  given  in  that  sense.'  A  reservation  in  a 
deed  will  never  operate  to  give  title  to  a  stranger,  though  it  may, 

W  Corbin  v.  Healy,  20  Pick.  514.  1  Gay  v.  Walker,  86  Me.  54.     See, 

»7Riggin  V.  Love,  72  111.  553;  Hali-  Warvelle,  Real  Property,  256. 

fax  V.  Stark,  34  Vt.  243 ;  Robinson  v.  2  Winthrop    v.    Fairbanks,    41    Me. 

Payne,  58  Miss.  690.  307. 

98  Adams    v.    Morse,    51    Me.    497;  3  Sloan    v.    Lawrence    Furnace    Co., 

Kistcr  V.  R€eser,  98  Pa.  St.  1.  29  Ohio  St.  568. 

WWinthrop    v.   Fairbanks,   41    Me. 
307. 


§  190]  FORMAL  PARTS  OF  DEEDS.  195 

when  intended  by  the  parties  as  an  exception,  afford  notice  to  the 
grantee  of  adverse  claims  in  or  to  the  thing  excepted  or  reserved.* 
A  restriction  may  take  effect  as  a  reservation,  if  it  does  not  neces- 
sarily deprive  the  grantee  of  the  essential  benefits  of  the  grant.^ 

Both  an  exception  and  a  reservation  may  precede  or  follow  the 
grant  or  may  follow  the  habendum,  in  which  latter  case  they  should 
be  alluded  to  in  the  granting  clause.  In  either  case  so  much 
thereof  should  be  copied  as  may  be  necessary  to  show  their  true 
character.  Where  an  exception  follows  the  grant,  then  after  the 
description  insert  the  exception  in  the  language  of  the  deed.    Thus : 

*  *  *  Saving  and  excepting  (it  is  stated)  the  north  ten  acres 
thereof,  heretofore  conveyed  to  the  Hills'boro  Country  Club. 

A  reservation  should  be  treated  in  much  the  same  way.    Thus : 

*  *  *  But  reserving  unto  the  said  party  of  the  first  part,  his 
heirs  and  assigns,  at  all  times  hereafter,  full  right  of  ingress  and 
egress  over  the  north  twenty  feet  of  the  land  hereby  conveyed  for 
all  purposes  connected  with  the  use  and  occupation  of  said  first 
party's  other  land  adjoining. 

It  would  seem  to  be  a  disputed  question  as  to  whether  the  word 
"heirs"  is  necessary  to  create  a  reservation  in  fee.  One  line  of 
cases  considers  the  word  essential,^  while  the  contrary  view  has  been 
adopted  in  some  States  where  by  statute  words  of  inheritance  are 
no  longer  necessary  in  the  conveyance  of  a  fee.'' 

The  same  certainty  of  description  is  required  in  an  exception 
out  of  a  grant  as  in  the  grant  itself,  as  where  a  deed  excepts  out 
of  the  conveyance  one  acre  of  land,  and  there  is  nothing  in  the  ex- 
ception to  locate  it  upon  any  particular  part  of  the  tract,  the  ex- 
ception is  void  for  uncertainty,  and  the  grantee  takes  the  entire 
tract.*  Keservations  and  exceptions,  when  expressed  in  a  doubtful 
manner,  are  to  be  construed  most  strongly  against  the  grantor,* 
yet  if  the  intention  of  the  parties  can  be  fairly  ascertained  from 
the  instrument,  such  intention  will  govern  in  its  construction.^" 

§  190.  Conditions  and  Restrictions.  Analogous  to  the  excep- 
tions and  reservations  of  a  deed  are  the  conditions  qualifying  the 

4  West  Point  Iron  Co.  v.  Eeymert,  7  Karmuller  v.  Krotz,  18  Iowa,  359. 

45  N.  Y.  703.  8  Mooney  v.  Cooledge,  30  Ark.  640. 

6  Gay  V,  Walker,  36  Me.  54.  9  Wyman    v.    Farrar,    35    Me.    64; 

6  Ashcoft  V.  Ey.  Co.,  126  Mass.  196 ;  Duryea  v.  New  York,  62  N.  Y.  592. 

Keeler  v.  Wood,  30  Vt.  242.  10  Wiley  t.  Sirdorus,  41  Iowa,  224. 


196  ABSTRACTS    OF    TITLE.  [§  190 

praiit  and  the  limitations  or  i-esti'ictions  of  its  use,  both  of  which 
demand  the  closest  attention  on  tlie  part  of  examiner  and  counsel. 
As  in  the  case  of  reservations,  the  conditional  or  restrictive  clauses 
should  be  copied  word  for  word,  the  abstract  showing  them  to  be 
literal  quotations.  Conditions  frequently  partake  of  the  nature 
of  the  consideration  for  the  conveyance,  and  declare  its  true 
motive,  and,  when  such  is  the  case,  it  becomes  doubly  important  that 
they  be  correctly  shown. 

Conditions  are  divided  into  precedent  and  suhsequent,  the  for- 
mer being  something  which  must  be  punctually  performed  before 
the  estate  can  vest,  and  deeds  containing  them  expressly  declare 
that  the  grant  is  vj)on  such  condition.  A  condition  subsequent 
indicates  something  to  be  performed  after  the  estate  vests,  the 
continuance  of  such  estate  depending  upon  its  performance.  The 
character  of  conditions,  precedent  or  subsequent,  depends  upon 
the  intention  of  the  parties,  as  shown  by  a  proper  construction  of 
the  whole  instrument,  not  upon  the  precise  or  technical  words 
used.^^  A  deed  upon  condition  subsequent  conveys  the  fee  with  all 
its  qualities  of  transmission.  The  condition  has  no  effect  to  limit 
the  title,  until  it  becomes  operative  to  defeat  it.^^ 

The  law  does  not  favor  forfeitures,^'  and  conditions  in  avoidance 
of  an  estate  are  strictly  construed;  no  language  will  be  construed 
into  such  a  condition  contrary  to  the  manifest  intent  of  the  parties, 
nor  when  any  other  reasonable  construction  can  be  given  to  it.** 
Conditions  of  this  kind  will  not  bind  the  heirs  or  assigns  unless  they 
are  expresslj''  mentioned,*"  nor  will  a  conditional  grant  revert  on 
breach,  there  being  no  clause  providing  for  forfeiture  or  re-entrj^*^ 
and  until  defeated  by  an  actual  entry  made  for  the  purpose  of  claim- 
ing a  forfeiture,  by  some  one  having  the  right  to  do  so,  the  estate 
continues  in  the  grantees."  Conditional  grants,  though  sometimes 
running  to  individuals,  are  more  frequently  found  in  dedicatory 
conveyances,  or  in  deeds  to  religious,  charitable  or  educational  in- 
stitutions. 

Restrictions  on  the  use  of  property  conveyed  are  of  more  fre- 
((uent  occurrence,  but,  unless  they  are  also  conditions  subsequent, 
do  not  work  a  forfeiture  in  their  violation.     They  consist  usuallj' 

llRogan   V.    Walkor,    1    Wis.    527;  16  Page   v.    Palmer,    48   N.    11.   .■?8o. 

Sheppard  v.  Thomas,  26  Ark.  617.  This    is    the    general    rule,    but    local 

12  Shattuek   v.    Hastings,    99    Mass.       statutes  may  qualify  or  vary  it. 

23.  16  Packard  v.   Ames,   82  Mass.  327. 

13  Voris  V.  Renshaw.  49  111.  425 ;  17  Osgood  v.  Abbott,  58  Me.  73 ; 
Hoyt  r.  Kimball,  49  N.  H.  322.                 Guild  v.  Richards,  82  Mass.  309. 

14Wier  V.  Simmons,  55  Wis.  637. 


§  190]  FORMAL  PARTS  OP  DEEDS.  197 

of  building  regulations,  sanitary  measures  and  matters  involv- 
ing the  good  morals  of  community,  as  prohibition  of  the  sale  of 
intoxicating  liquors  on  the  premises,  etc.  They  are  designed  or- 
dinarily to  prevent  such  use  of  the  premises  by  the  grantee  and 
those  claiming  under  him,  as  might  tend  to  diminish  the  value 
of  the  residue  of  the  land  belonging  to  the  grantor  or  impair  its 
eligibility  for  particular  purposes,  and  that  such  a  design  is  a 
legitimate  one,  and  may  be  carried  out  consistently  with  the  rules 
of  law  by  reasonable  and  proper  restrictions,  can  not  be  doubted. 
Every  owner  of  property  has  the  right  to  so  deal  with  it,  as  to 
restrain  its  use  by  his  grantee  within  such  limits  as  to  prevent  its 
appropriation  to  purposes  which  will  impair  the  value  or  diminish 
the  pleasure  of  the  enjoyment  of  the  land  which  he  retains."  Such 
restrictions  are  recognized  and  upheld  by  the  courts,  and  viola- 
tions thereof  will  be  restrained  by  injunction.^^ 

A  condition,  whether  precedent  or  subsequent,  is  not  binding 
after  the  party  imposing  it  has  rendered  its  performance  impos- 
sible or  unnecessary.^*' 

The  restrictive  clauses  of  a  deed  are  usually  written  after  the 
habendum  as  a  sort  of  continuation.  In  such  cases  the  formal 
phrasing  of  the  habendum  may  be  omitted  but  the  condition  or 
restriction  should  be  copied  in  full.    Thus : 

Provided,  however  (it  is  stated)  and  this  deed  is  made  and  ac- 
cepted subject  to  the  following  restriction,  that  no  huilding  shall 
at  any  time  he  erected  on  the  said  land  above  granted  and  de- 
scribed, within  twenty-five  feet  of  the  East  line  of  Jefferson  street, 
as  the  same  is  now  platted  and  laid  out. 

18  The     only     restriction     on     this  (Mass.),    359;    Atlantic   Dock    Co.    v. 

right    is    that    it    shall    be    exercised  Leavitt,  54  N.  Y.  35;  Watrous  v.  Al- 

reasonably,  with  due  regard  to  public  len,  57   Mich.  362;   and  see  Warvelle 

policy,  and  without  creating  any  un-  on  Vendors,  §  438  ct  seq. 

lawful   restraint   of  trade.     Nor   does  19  Dorr     v.     Harrahan,     101     Mass. 

there   seem   to   be   any   doubt   that   in  531;    Cowell   v.  Col.  Springs  Co.,   100 

whatever  language  such  a  restraint  is  U.  S.  55;   Clark  v.  Martin,  49  Pa.  St. 

couched,  whether  in  the  technii-al  form  289.      Where   restrictions   upon   build- 

of  a   condition    or  covenant,   or  of  a  ing  arc  inserted  in  a  deed  as  a  part  of 

reservation    or    exception,    or    merely  a  scheme  for  a  plan  of  improvement, 

by   words   which   give   to    the   accept-  such    restrictions,    as    a    rule,    though 

ance  of  the  deed  by  the  grantee  the  spoken  of  as  conditions,  are  not  to  be 

force  and  effect  of  a  parol  agreement;  deemed     technical     conditions     whoso 

it  is  binding  as  between  the  immedi-  breach  involves  forfeiture.     Ayling  v. 

ate   parties   thereto,   and   may   be   en-  Kramer,  133  Mass.  12. 

forced  by  or  against  their  respective  20  Jones   v.    R.    R.    Co.,   14   W.    Va. 

assigns.     Whitney  v.  Ry.  Co.,  11  Gray  514. 


198  ABSTRACTS   OF   TITLE.  [§  190 

Rut  somctiines  the  restriction  will  be  found  immediately  after 
the  grantor's  covenants.  Indeed,  this  seems  to  have  been  the  cus- 
tom of  the  old  conveyancers.  "When  such  is  the  case  the  habendum 
usually  has  an  allusion  to  the  restriction  and  this  should  appear 
ill  the  abstract.     The  following  is  a  suggestion: 

Te  have  and  to  hold  *  *  *  snhject,  however,  to  the  obliga- 
tions, duties  and  restrictions  hereinafter  set  forth  and  imposed 
upon  the  said  party  of  the  second  part,  his  heirs  and  assigns. 

Then  would  follow  any  intervening  matter  necessary  to  be  shown 
and  after  this  the  restriction,  in  the  language  of  the  deed,  should 
be  inserted. 

§  191.  Covenants.  The  covenants  of  a  deed  add  nothing  to 
its  efficiency  as  a  means  of  conveyance,  and  a  quitclaim  deed  will 
as  etfectually  pass  the  title  and  covenants  running  with  the  land 
as  a  deed  of  bargain  and  sale,  if  no  words  restrict  its  meaning.^i 
The  covenant  clause  usually  immediately  precedes  the  testimonium, 
and  when  consisting  only  of  the  conventional  assurance  of  seizin, 
right  to  convey,  freedom  from  incumbrance,  quiet  enjoyment  and 
warranty,  may  be  passed  with  simple  notice,  or  if  the  deed  is  in 
other  respects  regular,  and  is  described  in  the  abstract  as  a  "War- 
ranty Deed,"  there  seems  no  good  reason  why  any  further  men- 
tion should  be  madej  particularly  if  the  client  knows  such  to  be 
the  examiner's  custom.  There  is  no  uniform  rule  regarding  their 
insertion,  and  usualh''  they  are  omitted.  Special,  or  unusual  cov- 
enants, or  such  as  seek  to  limit  the  grantor's  liability,  should  be 
noticed  at  such  length  as  their  importance  seems  to  demand,  and 
if  necessary  for  a  proper  understanding,  should  be  literally  trans- 
cribed. 

Covenants  are  either  express  or  implied.  Implied  covenants 
must  be  consistent  with,  and  not  contrary  to,  the  express  cove- 
lumts,^'^  and  where  a  deed  contains  both,  the  latter  qualifies  aud 
restrains  the  former.^*  Covenants  are  also  classified  as  personal 
and  real,  or  those  which  run  with  the  land,  though  some  confu- 
sion exists  as  to  the  division  between  them.^*  No  special  words 
are  needed  to  raise  a  covenant,^^  and  whatever  shows  the  intent 

21  Morgan   v.    Clayton,   61    111.    35;  22  Gates  v.  Caldwell,  7  Mass.  68. 

Eowe    V.    Becker,   30    Ind.    154;    Pin-  23  Kent    v.    Welch,    7    .Tohns.    258; 

gree  v.   Watkins,   15  Vt.   479;    White  Sumner  v.  Williams,  8  Mass.  201. 
V.  Whitney,  3  Met.  81 ;   Hunt  v.  Ami  24  li  Bou.  Law  Diet.  327. 

don,  4  Hill,  345.  25  Newcomb  v.  Presbrey,  8  Met.  406. 


§  191]  FORMAL  PARTS  OF  DEEDS.  199 

of  the  parties  to  bind  themselves  to  the  performance  of  a  stipula- 
tion may  be  deemed  a  covenant  without  regard  to  the  form  of 
expression.^^ 

The  ancient  common  law  warranty  has  been  superseded  by  per- 
sonal covenants,  and  never  had  any  practical  existence  in  this 
country.2''  The  weight  of  American  authority  holds  that  the  cov- 
enants of  seizin,  good  right  to  convey  and  freedom  from  incum- 
brances, are  in  presenti;  that  they  do  not  run  with  the  land,  and  if 
broken  at  all,  are  broken  at  the  instant  of  their  creation,^*  The 
claim  for  damages  thereby  becomes  personal  in  its  nature  to  the 
grantee,  and  is  not  transferred  by  a  conveyance  to  a  subsequent 
grantee.^®  Several  of  the  States,  following  the  English  rule,  per- 
mit an  action  by  a  remote  grantee  in  his  own  name  where  the 
substantial  breach  of  the  covenant  occurs  after  the  assignment, 
and  the  whole  actual  damages  are  sustained  by  the  assignee.^" 
Where  privity  of  estate  exists  between  the  parties,  and  the  cov- 
enant is  one  about  or  affecting  the  land  granted,  and  tends  directly 
and  necessarily  to  enhance  its  value,  or  render  it  more  beneficial 
to  those  by  whom  it  is  owned,  the  covenant  is  said  to  be  incident 
to  the  land,  and  may  be  enforced  by  and  is  binding  upon,  those 
in  whom  the  title  subsequently  vests.^^  It  is  a  general  principle 
that  covenants  which  run  with  the  land  pass  only  with  the  legal 
title  thereto.^2  The  covenant  of  warranty  extends  only  to  the 
right,  title  and  interest  in  the  lands  bargained  and  sold  by  the 
vendor.    The  covenants  can  not  enlarge  the  premises.^^ 

Where  a  covenant  is  implied  from  statutory  words,  the  very 
words  of  the  statute  must  be  used  to  raise  it.^*  In  a  conveyance 
in  form  a  "Warranty  Deed,"  but  omitting  any  of  the  customary 
covenants,  it  is  well  to  note  the  omission,  and  in  such  cases,  where 
by  statute  covenants  are  implied  from  specific  words  of  grant,  the 
operative  words  of  conveyance  as  found  in  the  deed  should  be  in 
serted. 

As  heretofore  shown  the  words  "grant,  bargain  and  sell,"  in 
some  states,  are  given  effect  as  covenants.    Where  these  words  are 

26  Taylor  v.  Preston,  79  Pa.  St.  436,  30  Richard  v.  Bent,  59  111.  38;  Seho- 

27  Jones  V.  Franklyn,  30  Ark.  631.         field  v.  Homestead  Co.,  32  Iowa,  317; 

28  Tone  V.  Wilson,  81  111.  529 ;  Ful-       Cole  v.  Kimball,  52  Vt.  639. 

ler  V.  Jillett,  9  Biss.  (C.  Ct.)  296.  31  Wooliscroft   v.    Norton,    15    Wis. 

29  Salmon   v.  Vallejo,  41   Cal.   481;  198;  Wheeler  v.  Schad,  7  Nev.  204. 
Dale   V.    Shively,    8    Kan.    276;    Pills-  32  Wright  v.  Sperry,  21  Wis.  331. 
bury  V.  Mitchell,  5  Wis.  17;   Moiston  33  Lamb    v.    Wakefield,    1    Sawyer, 
V.    Hobbs,    2    Mass.   433;    Greenby   v.  251. 

Kellog,  2  Johns.  2.  34Vipond  v.  Hurlbut,  22  111.  226. 


200  ABSTRACTS  OF   TITLE.  [§  191 

employed  in  the  grant  and  the  deed  is  without  express  covenants 
the  fact  may  be  shown  by  a  brieJ:  note.    Thus: 

Deed  eontahis  no  covenants  other  than  those  implied  by  the 
icords  of  grant. 

§  192.  Execution.  The  execution  of  a  deed  technically  com- 
prises the  signing,  sealing  and  delivery  ^^  and  in  some  States  the 
attestation  of  witnesses  as  well,  but  the  attention  of  examiner  and 
counsel  need  only  be  directed  to  the  two  former,  and,  where  re- 
quired by  law,  the  attestation.  The  laws  of  the  various  States 
on  the  subject  of  execution,  though  preserving  a  general  harmony-, 
are  by  no  means  uniform  nor  have  they  always  been  the  same 
during  the  governmental  existence.  The  examiner  should  be  fully 
posted  on  all  the  changes  of  the  law  in  respect  to  the  execution  of 
deeds  in  his  own  State,  and  carefully  observe  and  note  in  the  ab- 
stract any  defects  or  errors,  in  signatures,  seals  or  attestation, 
and  any  non-compliance  with  statutory  requirements,  li^xtra  vigi- 
lance will  be  required  in  the  cases  of  deeds  by  married  women, 
conveyances  by  delegated  authority  and  by  corporations. 

§  193.  The  Signature.  Sealing,  not  signing,  was  the  sine  qua 
nun  lo  the  validity  of  the  common  law  deed,  and  a  signature  was 
nut  considered  necessary.""  Sealing  is  now  of  little  moment,  save 
as  a  tecnnicai  requirement,  wniie  nx  several  States  it  is  entirely 
uispensed  witn,  and  tne  deed  derives  its  emcacy  irom  tne  signa- 
ture. J^Lii  unsigned  deed,  tnougn  duiy  attested,  acknowledged  and 
uciivered,  is  a  nullity.'*' 

•'tt  lliuip    V,    lieuKuK    (Joal    Co.,    46  iug  the  aigu  ol  tlie  cross,    li^  the  stat- 

iS.   i.  i;o.i.  ute  oi  zy  Ciiurles  ii,  lor  lue  ^^reveu- 

»«>  (Joke,  Lit.  L.  1,  C.  5,  §  -lU.     This  tiou  ol'  iruuda  ami  perjuries,  all  iraiis- 

was    iloul>tiess    occasioueU.    by    reasoa  lers  oi  laud   were  required  to   be  put 

oi   tlie   very   general   inability   ol:   tiio  in  writiiig  aud  sigued  by  the  parties 

mass  ol  the  people  to  read  or  write;  makiiig    same,     aud    this    statute    la 

see    1   Iteeves'    Hist.   Jing.   Law,   lb4,  the  louiidatiou  ol  the  American  laws 

uutc.     Under  the  fciaxou  rule  it  would  upon    the    subject.      In    liiackstoue 'a 

seem  that  signing  was  in  general  use  time  signing  does  not  appear  to  have 

provided,    the    parties    were    able    to  been  essential  to  validity,  although  he 

write,   and   whether   they    could   write  says    (1   Com.  305;:      "It  is  said  to 

or  not  it  was  customary  to  atlix  the  be    requisite    that    the    party,    whose 

sign  of  the  cross;  but  on  the  Norman  deed   it  is,   should  seal,  and  now  in 

conquest    waxen    seals,    usually    with  most  cases,  I  apprehend,  should  sign 

some   specific  device,  were   introduced  it  also." 

and    took    the    place    of    the    Saxon  37  Goodman    v.    Randell,    44    Conn, 

method  of  writing  the  name  and  mak-  325;  Miller  v.  Ruble,  107  Pa.  St.  395; 


§  194]  FORMAL  PARTS  OP  DEEDS.  201 

The  law  presumes  that  in  executing  instruments,  parties  use 
their  real  names,  and  does  not  presume  them  to  have  different 
names.  So,  where  the  record  of  a  deed  purporting  to  have  been 
signed  by  Harmon  S.  was  acknowledged  by  Hiram  S.,  it  was  held 
inadmissible  to  prove  a  conveyance  by  Hiram,'*  as  only  the  signer 
can  acknowledge  as  grantor.  It  is  doubtful,  however,  whether 
this  can  be  received  as  the  accepted  doctrine,  the  volume  of  au- 
thority inclining  to  the  contrary,  and  generally  if  the  grantor's 
true  name  is  recited  in  the  body  of  the  deed  and  he  also  acknowl- 
edges it  by  his  true  name,  the  fact  that  he  signs  it  by  a  wrong 
name  does  not  invalidate  the  conveyance.'®  All  variances  of  this 
nature,  being  of  the  essence  of  the  conveyance,  require  full  no- 
tice. A  deed  signed  with  a  mark,  if  otherwise  regular,  may  be 
treated  as  properly  executed,  and  such  is  also  the  custom  of  ex- 
aminers where  the  signature  is  in  a  foreign  language.  Where  an 
instrument  is  found  with  a  signature  affixed  to  it,  if  the  deed  is 
properly  acknowledged,  the  presumption  is  that  the  party  sign- 
ing it  knew  its  contents,  and  there  is  no  distinction  in  this  respect 
between  those  who  can  and  those  who  can  not  write.*® 

§  194.  The  Seal.  In  most  of  the  States  the  formality  of  a  seal 
is  required  in  the  execution  of  deeds  for  the  conveyance  of  land, 
while  in  some  its  use  has  been  dispensed  with  by  statute.  The 
common  law  seal  has  been  defined  as  an  impression  upon  wax  or 
wafer  or  some  other  tenacious  substance  capable  of  being  im- 
pressed,*^ but  as  the  record  would  fail  to  show  the  method  of  seal- 
Hilton  V.  Asher,  103  Ky.  730.  It  38  Boothroyd  v.  Engle,  23  Mich.  19. 
would  seem  as  though  the  statement  39Middleton  v.  Findla,  25  Cal.  76; 
of  the  text  was  not  only  in  conso-  Tustin  v.  Taught,  23  Cal.  237  j  Zahnn 
nance  with  law  but  with  reason  as  v.  Haller,  71  Ind.  136;  Houx  v.  Bat- 
well,  yet  late  decisions  in  some  local-      teen,  68  Mo.  84. 

ities   would    indicate    that   a    deed    is  40Doran    v.    Mullen,    78    111.    342; 

not     necessarily     void     because     the      Young  v.  Duvall,  109  U.  S.  573. 
grantor's  name   is   not   subscribed   to  41  Warren   v.   Lynch,   5   Johns.    (N. 

it,  provided  it  is  written  in  his  own  Y.)  239.  And  a  later  decision  held 
handwriting,  and  so  placed  in  the  that  the  seal  of  a  corporation  or  of  a 
body  of  the  deed  as  to  control  the  private  individual  impressed  directly 
grant.  The  question  then  becomes  one  upon  paper  without  the  use  of  wax  or 
of  intent,  and,  it  has  been  held,  may  other  tenacious  substance  is  a  nullity, 
be  considered  by  a  jury  in  connection  although  holding  the  contrary  as  to 
with  other  circumstances.  See  Saun-  seals  of  courts  and  public  officers.  See 
ders  V.  Hackney,  10  Lea  (Tenn.),  Farmers'  Bank  v.  Haight,  3  Hill  (N, 
194.  See  also  the  topic  "Defective  Y.),  493. 
Execution,"  in  the  succeeding  chap- 
ter. 


202  ABSTRACTS   OP   TITLE.  [§  194 

ing,  the  examiner  would  still  be  at  a  loss  to  know  if  the  deed  had 
been  properly  sealed,  were  this  rule  still  in  effect.  In  a  majority 
of  the  States  where  seals  are  still  required,  a  scrawl  has,  by  stat- 
ute, the  force  of  a  seal,  whenever  it  appears  from  the  body  of  the 
instrument,  the  scrawl  itself,  or  the  place  where  affixed,  that  such 
scrawl  was  intended  for  a  seal.*^  Where  a  scrawl  is  allowed  for 
a  seal,  the  woi'd  "seal"  at  the  end  of  the  maker's  signature,  and 
referred  to  in  the  testimonium  clause,  creates  a  scaled  instrument, 
the  word  "seal"  is  equivalent  to  a  scrawl.*^  And,  generally,  an 
instrument  will  be  treated  as  sealed,  when  the  intent  to  affix  a 
seal  is  clear."  It  has  been  held  that  where  the  record  was  made 
at  a  time,  and  under  a  law,  permitting  the  registration  of  only 
sealed  instruments,  and  the  instrument  was  in  form  a  warranty 
deed,  the  conclusion  attestation  and  certificate  of  acknowledgment, 
all  speaking  of  it  as  under  seal,  it  will  be  presumed  that  the  orig- 
inal was  sealed.  And  whether  or  not  it  was  the  legal  duty  of  the 
recorder  to  indicate  upon  the  record  whether  the  instrument  was 
sealed,  his  omission  to  do  so  will  not  overcome  the  presumption.*" 
Usually,  if  the  instrument  is  otherwise  in  form,  it  will  at  least  be 
sufficient  to  convey  an  equitable  title,  and  therefore,  if  recorded, 
will  affect  those  interested  with  constructive  notice  of  its  contents 
as  fully  as  if  sealed.*^ 

If  one  of  several  grantors  named  in  an  instrument  which  pur- 
ports to  be  sealed  by  all  of  them,  neglects  to  affix  his  seal  thereto, 
in  the  absence  of  other  evidence  he  will  be  deemed  to  have  adopted 
the  seal  of  some  one  of  the  other  signers,  and  will  be  equally  bound 
with  them.*'' 

In  compiling  the  abstract  it  is  unnecessary  to  refer  to  the  exe- 
cution, or  any  part  thereof,  if  in  all  respects  regular  and  in  con- 
formity to  law ;  only  defects  or  omissions  require  notice,  and  these 
are  best  shown  by  a  literal  transcription. 

§  195.  Attestation.  Subscribing  witnesses  to  a  conveyance  of 
land  are  not  necessary  at  common  law,*^  nor  by  statute  in  many 

42  Hudson   V.   Poindexter,   42   Miss.  471 ;  LeFranc  v.  Richmond,  5  Sawyer 

304;    Deininger   v.   McConnel,   41   111.  (C.  Ct.),  601. 

229.     This  is  a  general  statutory  rule.  46  Grandin   v.    Hermandez,    29    Hun 

43Groner    v.    Smith,    49    Mo.    318;  (N.  Y.),  399.    Local  statutes  prescrib- 

Lewis  V.  Overby,  28  Gratt.  (Va.)   627.  ing    requisites    for    registration    may 

44  Burton  v.  LeEoy,  5  Sawyer,  510;  vary  this  rule. 

McCarley  v.  Supervisors,  58  Miss.  749;  47  Yale  v.  Flanders,  4  Wis.  96;  Nor- 

Flowery  Mining  Co.   v.  Bonanza  Co.,  veil  v.  Walker,  9  W.  Va.  447;  Mackay 

16  Nev.  302.  v.  Bloodgood,  9  Johns.   (N.  Y.)   285; 

45  Starkweather  v.  Martin,  28  Mich.  Davis  v.  Burton,  4  111.  41. 


§  196]      '  FORMAL  PARTS  OF  DEEDS.  203 

of  the  States;  others  require  an  attestation  by  one  subscribing 
witness  only,  while  in  a  majority  it  is  necessary  that  the  deed  be 
executed  in  the  presence  of  two  witnesses,  who  shall  subscribe 
their  names  to  same  as  such.  As  the  matter  of  attestation  is  purely 
statutory  the  effect  of  omission  in  this  particular  is  to  be  decided 
solely  by  the  application  of  local  law. 

The  usual  and  ordinary  words  of  attestation  are  "signed,  sealed 
and  delivered  in  our  presence,"  but  the  late  statutory  forms  of 
conveyance  have  somewhat  abbreviated  this  ancient  form  of  ex- 
pression, and  the  words  "in  our  presence,"  immediately  follow- 
ing the  testimonium  clause,  and  followed  by  the  signatures  of  wit- 
nesses, is  a  good  and  sufficient  attestation.  When  required  at  all, 
attestation  is  usually  a  prerequisite  to  registration,  and  any  in- 
formality in  this  respect  deprives  the  instrument  of  its  legal  ef- 
fect as  constructive  notice.*^  When  properly  attested  no  mention 
of  the  fact  seems  necessary  in  the  abstract,  while  omissions  or  de- 
fects may  be  indicated  by  some  simple  statement;  as 

No  subscribing  witness  shown  of  record. 

§  196.  Acknowledgment.  The  statutes  of  all  the  States  provide 
for  a  proof  of  execution  of  conveyances  of  land,  by  an  acknowl- 
edgment of  the  deed  before  some  officer,  evidenced  by  his  cer- 
tificate of  authentication.  Such  acknowledgment,  properly  cer- 
tified, authorizes  the  production  of  the  instrument  in  evidence 
without  other  or  further  proof  of  its  execution,  and,  in  some  States, 
is  a  prerequisite  to  registration. 

The  certificate  of  acknowledgment  is  no  part  of  the  convey- 
ance, and  is  not  the  act  of  either  party  to  it,^**  but  only  evidence 
in  regard  to  its  execution  and  acknowledgment,  and,  like  all  other 
evidence,  should  be  reasonably  considered  and  construed.^^  Be- 
ing statutory  creations  greater  strictness  is  necessary  in  their 
construction,  yet  it  is  a  well  settled  rule,  that  a  substantial  com- 
pliance with  statutes  prescribing  the  form  and  requisites  of  an 
official  certificate  of  acknowledgment,  or  proof  of  deeds,  is  suf- 
ficient.    It  is  the  policy  of  the  law  to  uphold  such  certificates 

48  Woods  Conv.  239;  Black.  Com.  though  the  deed  itself  will  still  be 
307;  Dole  v.  Thurlow,  12  Met.  (Mass.)  valid  and  binding  as  between  the  par- 
157^  ties  and  its  execution  may  be  estab- 

49  Parret  v.  Shaubhut,  5  Minn.  323 ;  lished  by  common  law  evidence.  Ho- 
Ross  V.  Worthington,  11  Minn.  441.  igans  v.  Carruth,  18  Fla.  587. 

60  An   acknowledgment   taken   by   a  61  Harrington  v.  Fish,  10  Mich.  415; 

grantee   named   in   the   deed   is   void,      Gray  v.  Ulrieh,  8  Kan.  112. 


204  ABSTRACTS   OP   TITLE,  [§  196 

whenever  subslanee  is  found,  and  not  to  suffer  conveyances,  or 
proof  of  them,  to  be  defeated  by  technical  or  unsubstantial  ob- 
jections, and  in  construing  them  resort  may  be  had  to  the  deed 
or  instrument,  to  which  they  are  appended;^*  yet  nothing  veill 
be  presumed  in  favor  of  an  official  certificate,  which  must  state 
all  the  facts  necessary  to  a  valid  official  act." 

Of  course,  the  certificate  should  be  signed  by  the  person  mak- 
ing it.  It  is  also  customary  for  the  officer  to  add  a  description  of 
his  office,  as,  "John  Smith,  Notary  Public."  But,  while  this  is 
a  usual  and  proper  custom,  it  does  not  seem  to  be  necessary  where 
the  body  of  the  certificate  describes  him  as  a  notary  public  and 
acting  officially.  In  such  case  the  omission  of  the  name  of  his 
office  after  his  signature  will  not  have  the  effect  of  rendering  the 
acknowledgment  invalid." 

The  official  acts  of  a  notary  should  be  authenticated  by  his  seal," 
particularly  when  a  non-resident  of  the  jurisdiction  where  the  land 
is  situate,  and  usually,  in  such  cases,  his  certificate  must  also  be 
accompanied  by  a  certificate  of  magistracy  and  conformity  made 
by  some  officer  of  competent  authority. 

The  seal  is  prima  facie  evidence  that  the  person  using  it  is  a 
notary,  duly  commissioned,^^  etc.,  and  its  absence  should  be  briefly 
noted;  thus: 

No  notarial  (or  official)  seal  shown  of  record. 

As  a  rule,  a  notarial  certificate  from  another  State  without  a 
seal  or  certificate  of  conformity  will  be  invalid ;  ^'  and,  generally, 
where  the  statute  requires  a  notary  to  attach  his  seal  to  certificates 

62  Wells  V.  Atkinson,  24  Minn.  161;  seal.     In  the  absence  of  express  legia- 

Tubbs  V.  Gatewood,  26  Ark.  128;  Bar-  lation  it  need  not  contain  his  name, 

net  V.  Proskauer,  62  Ala.  486;  Calu-  for  it  is  the  seal,  and  not  its  compo- 

met  Co.  V.  Russell,  68  lU.  426.  sition    or    character    of    which    courts 

68Wetmore  v.  Laird,  5  Biss.  160.  take  judicial  notice.    The  presumption 

64  Lake    Erie,    etc.,    E.    E.    Co.    v.  is  that  a  seal   is  the  official  seal  of 

Whitham,    155    111.    514;    Sumner    v.  the  person  it  purports  to  be,  and  who 

Mitchell,  26  Fla.  179.  subscribed  the  jurat.     In  Re  PhillijJS, 

66  The  requisites  of  a  notarial  seal  14  Nat.  Bankr.  Reg.  (No.  5)  219. 

are  determined  by  the  law  of  the  lo-  66  Brown  v.  Phil.  Bk.,  6  Serg.  &  R. 

cality   from   which   the   officer   derives  484;    Stephens  v.   Williams,   46  Iowa, 

his   authority;    or,   if   that   be   silent  540. 

on  the  subject,  then  by  the  rules  of  57  Booth  v.  Cook,  20  111.  129;  Texas 

the  common  law.     It  is  defined  as  an  Land  Co.  v.  Williams,  51  Tex.  51.    See 

impression  on   the  paper  directly,  or  also  the  local  statutory  provisions  on 

on    wax    or    wafer    attached    thereto,  this  subject, 
made   by  the   official   as  and  for  his 


§  196]  FORMAL  PARTS  OF  DEEDS.  205 

of  his  official  acts,  a  certificate  iinautlienticated  by  the  impression 
of  such  seal  is  void.^* 

The  law  does  not  usually,  in  terms,  impose  upon  the  recorder 
the  duty  of  transcribing  the  official  seal  of  the  officer  taking  the 
acknowledgment,  and  many  recorders  simply  represent  it  by  a 
scroll  and  the  words  ' '  seal "  or  "  notarial  seal ; "  ^*  but  whatever 
the  form  that  may  be  employed  to  indicate  the  fact  of  sealing  it 
should  be  observed  by  the  examiner.  It  has  been  held,  in  several 
instances,  that  where  there  is  a  statement  in  the  body  of  the  cer- 
tificate, that  the  officer  who  made  it,  affixed  his  seal  of  office,  a  pre- 
sumption is  raised  that  such  was  the  fact,  and  that  it  is  not  neces- 
sary that  the  record  copy  should  contain  a  fac  simile  of  the  seal, 
nor  any  indications  thereof  by  scroll.^" 

But  although  a  deed  is  defectively  acknowledged,  or  even  not 
acknowledged  at  all,  it  is  good  as  between  the  parties  and  subse- 
quent purchasers  with  actual  notice,  and  passes  title  equally  with 
one  duly  certified.  The  certificate  does  not  affect  the  force  of  the 
instrument.^^  Acknowledgment,  however,  is  frequently  a  requisite 
for  registration,  and  a  deed  must  be  legally  recordable  to  make  the 
record  thereof  constructive  notice,^^ 

The  certificate  should  state  the  fact  of  acknowledgment,  and 
should  fix  the  identity  of  the  party  making  same,  these  being  the 
great  essentials  of  every  official  authentication.^^  A  certificate  de- 
fective in  either  respect  does  not  show  a  substantial  compliance 
with  the  requirements  of  law,  which  provide  that  the  grantor  shall 
be  known  or  his  identity  satisfactorily  proved  to  the  certifying 
officer.^*  When  regular,  the  certificate  is  noticed  at  the  conclusion 
of  the  synopsis  by  a  brief  mention  of  the  fact  and  date,  as, 

68  Welton  v,  Atkinson,  53  Neb.  60  Geary  v.  City  of  Kansas,  61  Mo. 
674;  Hewitt  v.  Morgan,  88  Iowa,  468;  378;  Griffin  v.  Sheffield,  38  Miss.  359. 
De  Graw  v.  King,  28  Minn.  118.  But  61  Stevens  v.  Hampton,  46  Mo.  404; 
compare,  Sonfield  v.  Thompson,  42  Gray  v.  Ulrich,  8  Kan.  112;  Dole  v. 
Ark.  46.  Thurlow,  12  Met.  157;   Hoy  v.  Allen, 

69  In  Smith  v.  Dal,  13   Gal.  510,  it  27  Iowa,  208. 

was  held  that  it  is  not  necessary  that  62  Pringle    v.    Dunn,    37    Wis.    449; 
the    seal   should   be   copied   upon   the  Bass  v.  Estill,  50  Miss.  300;   Willard 
record  and  that  it  is  enough  if  it  ap-  v.    Cramer,   36   Iowa,  22.     This   is   a 
pears  from  the  record  that  the  deed  matter  of  statutory  regulation.     Con- 
copied  was  under  seal.     In  Bucklen  v.  suit  local  statutes. 
Hasterlik,    155    111.   423,   it   was   held  63  Bryan    v.    liamirez,    8    Cal.    461; 
that  the  letters  "L.  S."  following  the  Pendleton    v.    Button,    3    Conn.    406; 
name  of  a  notary  in  a  certificate  of  Siiort  v.  Conlee,  28  111.  219. 
acknowledgment,  as  shown  in  an  ab-  64  Stuller   v.   Link,   2   Thomp.   &   C. 
stract    of    title,    sufficiently    indicate  (N.  Y.)  86;  Callaway  v.  Fash,  50  Mo. 
that  an  official  seal  was  attached  to  420;  Smith  v.  Garden,  28  Wis.  685. 
such  certificate. 


206  ABSTRACTS   OP    TITLE.  [§  196 

Ackncnvl edged  June  1,  1832. 

Slight  defects  or  omissions  may  be  shown  in  a  descriptive  way, 
as: 

Acknowledged  June  1,  1882,  hy  Willmm  Smith  only,  (or)  In 
certificate  of  acknowledgment,  said  grantor's  name  is  written  "Wil- 
liam Smythe." 

Where  two  or  more  grantors  acknowledge  at  different  times,  as 
will  occasionally  be  the  case,  the  abstract  should  show  these  facts. 
Thus : 

Acknowledged  hy  Alfred  White  and  Bertha  White,  his  wife, 
June  1,  1920,  and  hy  Charles  Black,  July  12,  1920. 

Defects  of  form,  insufficient  statement,  or  non-compliance  with 
the  statute,  will  frequently  require  an  entire  or  partial  transcrip- 
tion of  the  certificate.  The  acknowledgments  of  married  women, 
corporations,  and  persons  acting  by  delegated  power,  or  in  an 
official  capacity,  should  be  closely  scrutinized,  while  in  several  of 
the  States  the  deed  is  ineffectual  to  convey  the  homestead  estate 
unless  the  st-atutory  right  is  specially  waived  in  the  acknowledg- 
ment. Where  the  certificate  omits  any  of  the  jurisdictional  facts 
such  omissions  should  be  properly  noted,  as: 

Certificate  of  acknowledgment  hy  James  Thompson,  Notary  Pub- 
lic, Cook  County,  III.,  does  not  state  that  grantors  were  known  to 
him,  or  that  they  waived  their  homestead  rights. 

As  between  the  immediate  parties,  the  certificate  may  be  im- 
peached for  fraud,  collusion,  or  imposition,  but  not  otherwise.^^ 
As  to  purchasers  for  a  valuable  consideration  without  notice,  it  is 
conclusive  as  to  all  matters  which  it  is  the  duty  of  the  acknowl- 
edging officer  to  certify  if  he  has  jurisdiction,^^  and  where  an 
officer  is  authorized  to  take  acknowledgments,  it  will  be  presumed 
that  they  were  taken  within  his  jurisdiction.^'^ 

66  Fitzgerald  v.  Fitzgerald,  100  111.  67  People  v.  Snyder,  41  N.  Y.  397; 

385.  Teutonia,  etc.,  Co.  v.  Turrell,  19  Ind. 

66  Williams    v.    Baker,    71    Pa.    St.      App.  469;   Cox  v.  Stern,  170  111.  442, 
476;    Wharton  on  Evid.   §1052;   Bor- 
land V.  Walrath,  33  Iowa,  130;  How- 
land  V.  Blake,  97  U.  S.  (7  Otto)  624. 


§  197]  FORMAL  PARTS  OF  DEEDS.  207 

The  subject  will  be  further  considered,  with  practical  examples, 
ill  treating  of  specific  conveyances. 

§  197.  Delivery.  No  principle  is  better  established  by  the 
entire  current  of  modern  authority  than  that  the  delivery  of  a 
deed  is  essential  to  a  transfer  of  the  title.^*  It  is  the  final  act  con- 
summating and  confirming  the  conveyance,  and  without  which  all 
other  formalities  are  ineffectual.^^  A  deed,  though  duly  executed 
and  otherwise  perfect,  while  remaining  under  the  control  of  the 
grantor  passes  no  title.'''® 

To  constitute  a  sufficient  delivery,  the  deed  must  not  only  he 
delivered  by  the  grantor,  but  must  be  accepted  by  the  grantee,'''^ 
though  ordinarily  a  delivery  of  a  deed  implies  an  acceptance.''^ 
What  constitutes  a  valid  delivery  or  acceptance  has  been  the  sub- 
ject of  a  great  diversity  of  opinion  and  a  vast  number  of  reported 
decisions,  and  is  still,  to  some  extent,  an  open  and  unsettled  ques- 
tion to  be  determined  by  the  particular  facts  of  each  case  under 
the  application  of  local  law.  These  questions,  however  important 
in  other  respects,  present  but  few  features  to  the  examiner,  who 
looks  only  at  the  instruments  as  they  appear  upon  the  records,  and 
passes  on  their  sufficiency  and  legal  effect  from  what  is  there 
shown.  The  attestation  clause  usually  recites  that  the  conveyance 
was  "signed,  sealed  and  delivered,"  etc.,  but  this  has  been  held, 
not  sufficient,  in  itself,  to  establish  a  delivery .'''^ 

The  recording  of  a  deed  not  only  affords  prima  facie  evidence  of 
its  delivery,'''*  but,  when  the  instrument  is  properly  executed  and 

68  Mitchell  v.  Bartlett,  51  N.  Y.  72  Davenport  v.  Whistler,  46  Iowa, 
447;  Stiles  v.  Brown,  16  Vt.  563;  287;  Bundy  v.  Ophir  Iron  Co.,  38 
Fisher  v.  Beckwith,  30  "Wis.  55;  Oli-  Ohio  St.  413.  This  is  the  general  rule, 
ver  V.  Stone,  24  Ga.  63.  and    rests    upon    the    ground    that    a 

69  Young  V.  Gailbeau,  3  Wall.  636;  party  is  presumed  to  accept  that  which 
Whitaker  v.  Miller,  83  111.  381;  is  beneficial  to  him,  yet  the  presump- 
Thatcher  v.  St.  Andrew's  Church,  37  tion  that  a  party  will  accept  a  deed 
Mich.  264.  because    it   is   beneficial    to    him    will 

TOEgery   v.    Woodard,   56   Me.   45;  never  be  carried  so  far  as  to  consider 

Fisher  v.  HaU,  41  N.  Y.  416;   Byars  him   as   having   accepted   it.      Bell   v. 

V.   Spencer,   101   111.  429.      Though   it  Farmers'  Bank,  11  Bush  (Ky.),  34. 
seems   that   a   deed    once   delivered   is  73  Ruslin    v.    Shield,    11    Ha.    636; 

not   invalidated    by   the    fact    that   it  but  see,  Howe  v.  Howe,  99  Mass.  88. 
remains     in     the     possession     of     the  74  Himes    v.    Keighblinger,    14    111. 

grantor.     Wallace   v.    Berdell,   97   N.  469;    Burkholder    v.    Cased,    47    Ind. 

Y.  13.  418;    Kille   v.    Eye,    79    Pa.    St.    15; 

71  Comer  V.  Baldwin,  16  Minn.  172;  Jackson    v.    Perkins,    2    Wend.    308; 

Commonwealth    v.    Jackson,    10    Bush  Lawrence  v.  Farley,  24  Hun  (N.  Y.), 

(Ky.),  424;  Welch  v.  Sacket,  12  Wis.  293;  Connard  v.  Colgan,  55  Iowa,  538; 

243;  Oxnard  v.  Blake,  45  Me.  602.  Moore  v.  Giles,  49  Conn.  570. 


208 


ABSTRACTS   OF    TITLE. 


:§i97 


Hcknowledgrod,  raises  a  lop:al  presumption  of  that  fact^''  and,  where 
it  is  to  the  grantee's  advantage,  of  its  acceptance  as  well.'^  Where 
the  grantor  in  a  deed  not  actually  delivered  causes  the  same  to 
be  recorded,  this  has  been  held  a  sufficient  delivery  to  enable  the 
grantee  to  hold  the  land  as  against  the  grantor  and  those  claim- 
ing under  him.'''  Generally  a  delivery  will  be  presumed,  in  the 
absence  of  direct  evidence  of  the  fact,  from  the  concurrent  acts 
of  the  parties  recognizing  a  transfer  of  title.'® 

As  a  general  rule  a  deed  will  be  presumed  to  have  been  delivered 
on  the  day  it  bears  date,'®  though  this  presumption  is  not  conclu- 
sive.^o  It  has  been  held  that  where  the  date  of  acknowledgment 
is  sub.sequent  to  the  date  of  the  deed,  there  is  no  presumption  of 
delivery  prior  to  the  acknowledgment."  The  volume  of  authority, 
however,  does  not  sustain  this  doctrine,  and  the  date  of  execution, 
in  the  absence  of  other  proof  to  the  contrary,  may  still  be  taken  as 
the  true  date  of  delivery ,®2  and  not  the  date  of  acknowledgment, 
which,  as  a  matter  of  convenience,  may  well  have  been  made  after- 
ward.*^ So  where  a  grantee  dies  between  the  dates  of  the  deed  and 
its  acknowledgment,  it  will  be  presumed  that  the  deed  had  been 
delivered  in  his  lifetime.®*  As  a  conveyance  derives  its  effect  and 
operation  only  from  delivery  of  the  deed,  the  question  of  time  will 


76Killc  V.  Eye,  79  Pa.  St.  15;  Alex- 
ander V.  Alexander,  71  Ala.  295;  but 
see,  Boyd  v.  Slayback,  63  Cal.  493. 

76  Metcalfe  v.  Brandon,  60  Miss. 
685;  Masterson  v.  Cheek,  23  111.  73. 
While  the  recording  of  a  deed  for 
land  may  afford  prima  fade  evidence 
of  its  delivery  and  acceptance,  this 
must  be  understood  as  applying  to  a 
deed  simply  conveying  the  land,  and 
not  as  applying  to  a  deed  which  im- 
poses an  obligation  upon  the  grantee 
to  assume  and  pay  a  pre-existing  in- 
cumbrance on  the  property.  Thomp- 
son V.  Dearborn,  107  111.  87. 

Tf  Kerr  v.  Birnie,  25  Ark.  225 ;  Dale 
V.  Lincoln,  62  111.  22;  Palmer  v. 
Palmer,  62  Iowa,  470. 

78  Gould  v.  Day,  4  Otto  (U.  S.), 
405.  Thus  where  a  deed  had  been  ex- 
ecuted and  recorded  without  the 
knowledge  of  the  grantee,  who  subse- 
quently executed  a  conveyance  to  a 
third  party,  this  recognition  by  both 
parties   of   the   transfer   of   the    title 


was  held  to  be  sufiQcient  evidence  that 
at  the  time  a  delivery  of  the  deed  had 
l)een  made.     Ibid. 

79  Deninger  v.  McConnell,  41  III. 
228;  Troadwell  v.  Reynolds,  47  Cal. 
171;  Harman  v.  Oberdorfer,  33  Grat. 
(Va.)  497;  Eaines  v.  Walker,  77  Va. 
92. 

80  Whitman  v.  Henneborry,  73  111. 
109. 

81  Fontains  v.  Savings  Institution. 
57  Mo.  553;  Brolasky  v.  Furey,  12 
Phil.  (Pa.)  428.  Washburn  also  an- 
nounces the  same  principle.  See  3 
Wash.  Eeal  Prop.  (4th  Ed.)  286. 

82  Hardin  v.  Crate,  78  111.  553; 
Ellsworth  V.  Cent.  R.  R.,  34  N.  J.  L. 
93 ;  Billings  v.  Stark,  15  Fla.  297. 

83  People  v.  Snyder,  41  N.  Y.  402; 
Hardin  v.  Osborne,  60  111.  93,  and  see 
Fisher  v.  Butcher,  19  Ohio,  406. 

84  Eaton  v.  Trowbridge,  38  Mich. 
454. 


§  198]  FORMAL  PARTS  OF  DEEDS.  209 

not  infrequently  form  an  important  element  in  the  methods  em- 
ployed by  counsel  in  framing  his  opinion  of  the  title,  as  well  as 
in  determining  the  respective  rights  and  relations  of  parties  who 
hold  under  the  deeds,  or  who  show  conflicting  or  adverse  claims. 
The  abstract  will  usually  shed  but  little  light  on  itself,  and  under 
ordinary  circumstances  it  will  be  safe  to  proceed  on  the  assump- 
tion that  the  date  of  execution  is  also  the  time  at  which  the  title 
to  the  property  conveyed  passed  to  the  grantee.^^  In  case  of  a 
forged  instrument,  there  is  no  presumption  of  delivery  either  at 
its  date,  or  at  any  other  time.^^ 

§  198.  Ancient  Deeds.  Deeds  more  than  thirty  years  old  are 
called  "ancient  deeds,"  and  are  exempt  from  the  usual  tests  ap- 
plied to  conveyances,  being  admitted  in  evidence  without  proof  of 
execution,^''  and  where  a  deed  would  be  evidence  as  an  ancient 
deed  without  proof  of  its  execution,  the  power  under  which  it  pur- 
ports to  have  been  executed  will  be  presumed.^*  This  rule  is  not 
uniform,  however,  and  it  has  been  held  that  a  conveyance,  though 
over  thirty  years  old,  can  not  be  admitted  as  an  ancient  deed  when 
purporting  to  be  executed  by  one  acting  as  administrator  in  the 
absence  of  proof  of  his  authority  to  make  the  deed.  And  when 
such  authority  is  conferred  by  an  order  or  decree  of  a  court,  the 
jurisdiction  of  the  latter  to  grant  the  order  or  decree  must  be 
shown  on  the  face  of  the  proceedings.^^ 

Some  discretion  may  be  employed  by  the  examiner  in  regard  to 
conveyances  of  long  standing,  and  under  which  the  rights  of  the 
parties  have  become  fixed  by  continued  possession  and  enjoyment. 
It  will  not  be  necessary,  in  many  cases,  to  notice  defects  that  should 
invariably  appear  in  the  case  of  later  deeds,  particularly  when 
rendered  of  no  effect  by  curative  legislative  enactments. 

Most  of  the  States  have  enacted  statutes  which,  in  effect,  cure 
defects  and  irregularities  in  acknowledgments  of  deeds  made  a 
specified  time  prior  to  such  enactments.  In  the  absence  of  any 
inhibiting  constitutional  limitation,  and  except  as  against  vested 
rights,  it  would  seem  the  legislature  has  power  to  cure,  by  retro- 
active legislation,  defective  acknowledgments  of  deeds,  in  all  cases 
where  the  purpose  of  the  acknowledgment  is  the  admission  of  the 

86  Breckenridge    v.    Toss,    3    T.    B.  86  Kemington  Pap.  Co.  v.  0  'Dough- 

Mon.    (Ky.)    150.     The  same  doctrine  crty,  81  N.  Y.  474. 
is   recognized   and   sanctioned   by   the  87  Wliitman    v.    Heneberry,    73    111. 

English  decisions  under  their  statutes  ]09;  Gardner  v.  Grannisa,  57  Ga.  539. 
of  enrollments.     See  also  Shop.  Touch.  88  .Johnson  v.  Shaw,  41  Tex.  428. 

72.  89  Fell  v.  Young,  63  111.  106. 

Warvelle  Abstracts — 14 


210  ABSTRACTS   OP    TITLE.  [§  198 

instrument  acknowledged  to  record  or  its  use  as  evidence.  Where 
the  statute  cures  irregularities  in  acknowledgment,  the  record  of 
such  deed,  made  prior  to  the  enactment,  is  also  cured  and  rendered 
valid,  and  such  record,  or  a  copy  thereof,  is  properly  admissible  in 
evidence.^ 

§  199.  Stamps.  By  act  of  Congress,^*  July  1,  1862,  and  acts 
amendatory  thereto,®^  an  ad  valorem  stamp  duty  was  imposed  on 
deeds  of  conveyance  and  other  contracts  relating  to  real  property. 
The  act  provided  that  the  stamps  should  be  affixed  to  the  instru- 
ment and  properly  cancelled,®'  and  in  default  thereof  the  instru- 
ment to  be  invalid.  The  act  became  in  force  on  and  after  Oct. 
1,  1862,  and  continued  for  a  period  of  ten  years.^  By  the  act  of 
June  33,  1898,  a  stamp  duty  was  again  imposed,  which,  in  various 
forms,  continued  until  July  3 ,  1902.  By  the  act  of  Oct.  8,  1917,  a 
further  stamp  duty  was  imposed  on  conveyances,*^  which,  at  the 
time  of  this  writing,  is  still  in  force.  On  all  instruments  executed 
during  these  periods,  the  examiner  will  observe  whether  the  record 
purports  to  show  a  stamp.  If  so,  it  should  be  briefly  indicated  in 
some  manner,  as ; 

U.  S.  Int.  Rev.  Stamps  for  $1.50  affixed. 

or,  if  none ; 

No  Int.  Rev.  Stamp  shown  of  record. 

The  presence  or  absence  of  the  stamp,  however,  matters  little  so 
far  as  the  validity  of  the  conveyance  is  concerned,  for  it  is  not  in 
the  constitutional  power  of  Congress  to  prescribe  for  the  States 
a  rule  for  the  transfer  of  property  within  them,®^  nor  to  provide 
rules  of  evidence  for  the  State  courts,®''  and  conveyances  are  not 
rendered  void  by  the  omission  of  the  prescribed  stamps,®*  nor  for 

90  Sumner  v.  Mitchell,  29  Fla.   179.  Carpenter   v.   Snelling,   97   Mass.   452. 

91  12  U.  S.  Stat.  475.  97  Barbour   v.  Gates,  43  N.  Y.  40 ; 

92  13  U.  S.  Stat.  299.  Craig  v.  Dimock,  47  111.  308;  Green 
98  13  U.  S.  Stat.  293.  v.  Hohvay,  101  Mass.  243;  Griffin 
94  The  duty  was  repealed  by  the  aet  v.  Ranney,  35  Conn.  293. 

of  June  6,  1872,  in  force,  Oct.  1,  1872.  98  Janvrin  v.  Fogg,  49  N.  H.  340; 

See,  17  Stat,  at  Large,  256.  Rhienstrom    v.    Cone,    26    Wis.    163; 

96  U.  S.  Comp.  Stat.   1918,  Tit.  35,  Brown  v.  Thompson,  59  Me.  372;  Mor- 

Chap.  9.  ris  v.  McMorris,  44  Miss.  441;  Latham 

96  Moore   v.   Moore,  47   N.   Y.  467;  v.   Smith,  45  111.   29. 


§199] 


FORMAL  PARTS  OF  DEEDS. 


211 


neglect  to  cancel  them  if  affixed.^^  The  act,  so  far  as  it  prescribes 
a  rule  of  evidence,  is  operative  only  in  the  Federal  courts,  and  has 
no  application  to  the  courts  of  the  States. ^ 

The  right  of  the  Federal  Government  to  collect  a  revenue  by 
the  imposition  of  stamp  duties  is  undisputed,  and  penalties  may 
be  prescribed  for  the  non-payment  of  such  tax.  But  the  authori- 
ties are  united  in  declaring  that  an  unstamped  instrument  if  oth- 
erwise conforming  to  law,  is  not,  for  that  reason,  invalid.^ 


99  Agricultural  Assoc,  v.  Neill,  31 
Iowa,  95;  D'Armond  v.  Dubose,  22 
La.  Ann.  131. 

1  Wilson  V.  McKenna,  52  111.  43; 
People  V.  Oates,  43  N.  Y.  40;  Sam- 
mons  V.  Halloway,  21  Mich,  162; 
Woodward  v.  Roberts,  58  N.  H.  503; 
Small  V.  Slocumb,  112  Ga.  279;  Ken- 
nedy V.  Eoundtree,  59  S.  C.  324;  Cos 
V.  Estes,  106  Tenn.  472. 


2  Sammons  v.  Halloway,  21  Mich. 
162;  Bunker  v.  Green,  48  111.  243; 
Duffy  V.  Hobson,  40  Gal.  240.  An 
apparently  contrary  decision  was 
reached  in  Chartiers,  etc.,  Co.  v.  Mc- 
Namara,  72  Pa.  St.  278,  but  this  ease 
seems  to  stand  alone. 


CHAPTER  XIV. 

ERRORS,  OMISSIONS  AND  DEFECTS. 

§  200.  Error  generally.  S  206.  Misdescription — Omission. 

§  201.  Defect  of  parties — Grantor.  S  207.  Misdescription — Quantity. 

§  202.  Defect  of  parties — Grantee.  §  208.  Defective  covenants. 

§  203.  Disparity  of  dates.  §  209.  Defective  acknowledgment. 

§  204.  Technical  phrases.  §  210.  Continued. 

S  205.  Misdescription — Uncertainty.  §  211.  Repugnancy. 

§  200.  Error  Generally.  Conveyancers,  like  other  mortals,  have 
no  immnnity  from  error.  Not  only  do  the  best  skilled  often  for- 
get, bnt  ignorance  and  carelessness,  assuming  the  office  and  func- 
tions of  the  conveyancer,  augment  their  mistakes  a  thousand  fold. 
Superadded  to  these,  are  the  errors,  blunders  and  omissions  aris- 
ing during  the  transcribing  from  the  original  documents  to  the 
record,  all  of  which  necessitates  constant  watchfulness  on  the  part 
of  both  examiner  and  counsel. 

The  errors  most  common  are  found  in  disparity  of  dates ;  the 
acknowledgment  frequently  antedating  the  execution,  and  occa- 
Siionally  the  date  of  registration  having  priority  of  both.  Dis- 
crepancies in  names ;  a  particular  name  appearing  in  the  premises, 
another  in  the  execution  and  ofttimes  yet  another  in  the  acknowl- 
edgment. Manifest  misdescriptions  of  the  property  intended  to 
be  conveyed  when  compared  with  preceding  conveyances;  some- 
limes  glaring  and  obtrusive  and  again  retiring  and  only  dis- 
cernible by  close  and  concentrated  attention.  Omissions  are  more 
frequent  and  palpable.  They  are  usually  the  result  of  negligence 
on  the  part  of  either  the  conveyancer  or  recorder,  or  perhaps  both, 
and  call  for  a  corresponding  degree  of  care  on  the  part  of  the  ex- 
aminer. Where  printed  forms  are  used  in  conveyancing,  blanks 
are  frequently  improperly  filled,  or  quite  as  often  left  untouched. 
This  will  frequently  be  found  to  be  the  case  in  the  matter  of  dates, 
personal  pronouns,  references  to  the  parties,  venue  and  the  like. 
Misdescriptions  of  the  property  often  occur  where  the  conveyancer 
copies  the  description  from  some  older  deed  in  which  figures, 
initials,  words,  a  course  or  distance,  or  even  a  whole  line  will  be 
omitted  and  pass  unnoticed  until  detected  by  the  examiner.  These 
errors,  appearing  on  the  face  of  the  record,  it  is  the  duty  of  the 

212 


§  201]  ERRORS,   OMISSIONS   AND   DEFECTS.  213 

examiner  to  detect  and  carefully  note  in  such  a  manner  that  the 
attention  of  counsel  will  be  drawn  to  them  on  the  perusal  of  the 
abstract. 

§201.  Defect  of  Parties — Grantor.  A  discrepancy  will  fre- 
quently be  noticed  between  the  names  of  the  grantors  in  the  body 
of  the  deed,  usually  written  by  the  conveyancer,  and  those  in  the 
execution,  written  by  the  parties  personally.  "Where  the  variation 
is  slight  the  difference  may  be  shown  by  writing  the  name  in  the 
caption  or  entitlement  as  it  appears  in  the  signature,  and  adding 
a  statement  at  the  conclusion  of  the  synopsis  substantially  as  fol- 
lows: 

I 

In  hody  of  deed  (and  certificate  of  acknowledgment)  said 
grantor's  name  is  written  '^George  A.  Smith/' 

The  error  or  variation  being  indicated  in  both  names  by  an 
underscore. 

Discrepancies  similar  to  the  one  just  noticed  are  frequent,  but 
fortunately  comparatively  harmless.  The  law  knows  but  one  Chris- 
tian name,  and  the  omission  or  insertion  of  a  middle  name  is  im- 
material,^ and  usually  if  there  is  a  variance  between  the  names  of 
the  grantors  as  they  appear  in  the  body  of  the  deed  and  in  the 
signatures,  the  identity  of  the  persons  will  be  presumed,  until 
rebutted,  where  the  deed  has  been  properly  acknowledged.^  In 
case  of  a  radical  difference  in  the  orthography  or  sound,  the  names 
in  the  premises  should  form  the  caption  and  the  execution  of  the 
deed  should  be  set  forth  fully. 

An  apparent  defect  of  parties  will  sometimes  appear  through 
an  error  of  the  copyist  in  transcribing  the  original  instrument  to 
the  pages  of  the  record.  Thus  a  deed  is  found  from  Harry  Thomp- 
son. The  title  of  record,  as  shown  by  the  previous  conveyance,  is 
vested  in  Harvey  Thompson.  Now  if  the  original  entries  of  the 
examiner  disclose  that  the  deed  in  question  is  from  Harvey  Thomp- 
son it  may  fairly  be  concluded  that  the  name  as  recorded  is  an 
error  of  transcription.  But  the  examiner  must  show  the  deed  as 
he  finds  it.  This  he  does,  calling  attention  to  the  discrepancy  by 
underscoring  the  erroneous  part  of  the  name  and  then,  for  the 

IJames    v.     Stiles,    14    Pet.    322;       Jennings,    C8    Ind.    232;    Franklin    v. 
Dunn  V.  Gaines,  1  McLean,  321;   Er-       Talmadge,  5  Johns.    (N.  Y.)   84. 
Bkine  v.  Davis,  25  111.  251;  Scofield  v.  2  Lyon  v.  Kain,  36  111.  362. 


214  ABSTRACTS   OP   TITLE.  f  §  201 

iuformatiou   of  counsel,   he  should  append   a  note  something  as 
follows : 

Note.' — Our  booJiS  of  original  entry,  compiled  from  original  instru- 
ments before  the  same  are  spread  of  record,  show  the  name 
of  the  grantor  in  the  foregoing  deed  to  he  Harvey  Thompson. 

It  sometimes  happens  that,  through  inadvertence  or  mistake, 
the  name  of  the  grantor  has  been  entirely  omitted  in  the  body  of 
the  deed,  and  while  it  has  been  held,  in  some  instances,  that  one 
who  signs,  seals  and  delivers  a  deed  is  bound  by  such  acts  as 
grantor,  although  not  named  as  such  therein,^  the  current  of  later 
decisions  would  indicate  that  a  deed  of  this  kind  is  ineffectual  to 
convey  any  interest  or  pass  title.*  The  theory  upon  which  the 
first  mentioned  class  of  cases  proceed  seems  to  be,  that  the  signing 
of  a  deed  manifests  the  intention  of  the  signer  to  be  bound  by  it, 
and,  hence,  that  courts  should  construe  such  a  deed  so  as  to  give 
effect  to  the  intention  of  the  parties.^  But  the  preponderance  of 
authority  holds  that  the  intention  of  parties  must  be  derived  from 
the  language  of  the  deed  itself,  and,  therefore,  when  there  is  noth- 
ing in  the  body  of  the  deed  to  show  an  intention  on  the  part  of  the 
signer  thereof  to  convey,  his  mere  signature  cannot  be  held  to 
manifest  such  purpose.^  It  will  be  seen,  therefore,  that  this  is  a 
doubtful  question  and  when  it  arises  must  be  settled  by  local  usage. 

Where  only  a  portion  of  the  grantors  named  in  a  deed  sign  and 
acknowledge  same,  the  authorities  are  somewhat  divided  as  to  its 
effect.  Some  hold  that  where  a  deed  shows  that  it  was  intended 
to  be  jointly  executed  by  all  the  parties,  an  execution  and  delivery 
by  a  portion  only  is  incomplete  and  does  not  bind  them ;  "^  a 
majority  of  cases,  however,  favor  the  contrary  doctrine  and  seem 
to  sustain  the  principle,  that  the  parties  executing  will  be  bound 
thereby,  and  the  deed  be  sufficient  to  pass  their  interests.  The 
question  will  be  most  frequent  in  partnership  conveyances.* 


3  Elliott  V.  Sleeper,  2  N.  H.  525 
Thompson  v.  Loverein,  82  Pa.  St.  432 
Armstrong   v.   Stovall,   26   Miss.   275 


5  Sterling  v.  Park,  129  Ga.  309,  58 
S.  E.  828. 

6  See,  Davidson  v.  Ala.  Iron  &  Steel 


Harouska  v.  Janke,  66  Wis.   252,  28      Co.,  109  Ala.  383,  19  So.  390;  Dietrich 
N.    W.    166.  V.  Hutchinson,  73  Vt.  134,  50  Atl.  810. 

4  Harrison  v.  Simmons,  55  Ala.  510;  7  Arthur  v.  Anderson,  9  S.  C.  234. 

Laughlin  v.   Fream,  14  W.  Va.  322;  8  See,    Story    Part.    §119;    Parsons 

Peabody  v.  Hewitt,  52  Me.  33 ;  Bank      Part.   §  369. 
V.  Rice,  4  How.  225;  Stone  v.  Sledge, 
87  Tex.  49;  Adams  v.  Medsker,  25  W. 
Va.   127. 


§  202]  ERRORS,    OMISSIONS    AND   DEFECTS.  215 

If  the  true  owner  of  land  conveys  by  any  name,  the  conveyance, 
as  between  him  and  his  grantee,  will  transfer  title,  and  in  all  cases 
evidence  aliunde  is  admissible  to  identify  the  actual  grantor.^ 

So,  too,  even  though  no  grantor  is  specifically  named  in  the  deed 
it  may  yet  be  given  effect  as  a  conveyance  if  there  is  otherwise  a 
sufficient  designation  or  description  of  the  grantor.  As  where  the 
deed  employs  only  personal  pronouns.  "We  do  grant  and  con- 
vey;" "I  do  grant  bargain  and  sell;"  or  some  other  designatory 
description  which  serves  to  identify  the  grantor.  As,  the  "under- 
signed," or  "we  the  heirs  of  A."  Such  designatory  descriptions 
have  been  held  sufficient.^® 

§  202.  Defect  of  Parties— Grantee.  Defects,  of  the  kind  which 
forms  the  caption  to  this  section,  arise  mainly  from  imperfect 
designation,  misnomer  and  omission,  and  from  their  nature  are 
not  always  susceptible  of  easy  detection.  In  case  of  misnomer 
they  will  frequently  appear  only  inferentially  by  comparison  with 
other  instruments,  but  when  detected  attention  should  be  drawn 
to  them.  Where  a  deed  to  William  Harmon  is  followed  by  a  con- 
veyance from  William  J.  Hermann,  there  is  an  apparent  break  in 
the  chain  and  the  examiner  should  call  attention  thereto  by  an 
underscore,  or,  better  still,  by  a  row  of  short  marks  under  each 
name,  thus:  Hermann.  When  an  understanding  to  that  effect 
exists  between  examiner  and  counsel,  this  method  of  notation  will 
also  serve  to  signify  that  this  is  the  identical  manner  in  which 
words  so  treated  appear  upon  the  records,  and  is  not  due  to  any 
negligence  of  transcription  on  the  part  of  the  examiner. 

Defects  similar  to  that  just  considered  are  latent  defects  and 
susceptible  of  parol  explanation,  and  where  no  new  deeds  are  made, 
affidavits  showing  the  identity  of  the  parties  should  be  required 
by  counsel.  In  construing  deeds  of  this  character,  i.  e.,  where  a 
party  takes  under  a  misnomer,  but  conveys  by  his  proper  name, 
courts  are  ever  inclined  to  grant  the  widest  leniency,  for,  in  the 
great  influx  of  foreign  speaking  population  which  the  United 
States  is  constantly  receiving,  mistakes  must  occur  in  adapting  to 
the  English  forms  of  pronunciation,  foreign  names  and  the  spelling 
of  same;  hence  it  has  been  held  that  a  deed  to  "Mitchell  Allen," 

9  As   where   a  deed  purports  to  be  10  See,   Sheldon   v.   Carter,   90   Ala. 

from   John   O.    Black,   and   is   signed  380,  80  So.  63;   Withers  v.  Pugh,  91 

"J.  O.  Black,"  parol  evidence  is  ad-  Ky.   522,   16   S.  W.   277;    Blaisdell  v. 

missible  to  show  that  James  0.  Black  Morse,  75  Me.  542;  Ins.  Co.  v.  Waller, 

was  the  identical  person  who  in  fact  116  Tonn.  1,  95  S.  W.  811. 
executed     the     deed.       Wakefield     v. 
Brown,  38  Minn.  361. 


216  ABSTRACTS   OF    TITLE.  [§  202 

followed  by  a  doed  from  "Michael  Allaine,"  is  not  a  fatal  variance, 
and  the  parties  will  be  presumed  to  be  the  sarae.^*  Very  frequently 
the  negligence  of  the  recorder  will  produce  disparities  of  this  kind, 
as  where  the  records  show  a  deed  to  "Electa  Wilds"  and  a  subse- 
quent deed  of  the  same  property  from  "Electa  Wilder,"  "Wilds" 
being,  however,  the  true  name.  In  every  case  similar  to  this  tlu? 
attorney  examininp:  the  abstract  should,  by  proper  inquiries,  ascer- 
tain the  facts,  and  when  the  defect  is  wholly  due  to  errors  in 
transcribing,  a  re-reeord  of  the  instrument  should  be  had.  As  a 
rule,  defects  in  the  record  or  paper  title  may  be  cured  or  removed 
by  parol  evidence.^^ 

Grantees  capable  of  identification,  though  not  fully  named,  will 
nevertheless  take  title;  thus,  a  deed  to  John  Smith  and  the  "other 
heirs  at  law"  of  one  deceased,  would  convey  an  estate  to  all  tlu^ 
heirs  of  such  deceased  person  as  fully  as  if  each  were  specifically 
named  ;^^  yet  where  one  of  such  "heirs"  has  attempted  to  assert 
title,  the  abstract  should  show  by  competent  evidence  his  right  so 
to  do.  A  conveyance  to  a  person  specified,  however,  and  the  heirs 
of  a  liiHug  person  would  be  void  as  to  all  except  the  person 
specifically  named.^*  The  word  "heirs"  has  a  definite  legal  signi- 
fication, and,  when  unexplained  and  uncontrolled  by  the  context, 
must  be  interpreted  according  to  its  strict  technical  import.  But 
where,  from  the  language  of  the  instrument,  and  the  circumstances 
surrounding  its  execution,  it  plainly  appears  that  the  grantor,  in 
using  the  word  "heirs,"  meant  "children"  it  will  be  so  construed 
and  the  deed  given  effect.^^ 

A  deed  to  a  dead  person  is,  of  course  a  iiullity,^^  though  it  seems 
that  a  conveyance  to  one  at  the  time  dead,  "or  his  heirs,"  is  good 
if  the  heirs  can  be  identified.^''  It  seems  almost  unnecessary  to 
remark  that  a  deed  without  a  grantee  is  absolutely  void." 

But,  as  previously  shown,  it  is  not  essential  to  validity  that  the 

11  Chiniquy   v.    Catholic   Bishop,   41  56 ;   Shriver  v.  Shriver,  86  N.  Y.  575. 

111.  148.     It  has  been  held  that  where  13  Cook   v.   Sinnamon,   47   111.   214; 

a   person   accepts   a   deed   of  convey-  Low  v.  Graff,  80  111.  360. 

ance   in   which   his   name   is   not   cor-  14  Hall    v.    Leonard,     1     Pi<'k.     27; 

rcctly  stated  or  spelled,  he  is  deemed  Winslow  v.  Winslow,  52  Ind.  8. 

to  have  adopted  the  erroneous  name  16  Roberson    v.    Wampler,    104    Va. 

for  the  purpose  of  acquiring  and  hold-  380,  51  S.  E.  835,  1  L.  R.  A.  (N.  S.) 

ing  title  to  the  land.    Blinn  v.  Chess-  318;  Heath  v.  Hewitt,  127  N.  Y.  166, 

man,  49  Minn.  140.     And,  generally,  27  N.  E.  959;  Seymour  v.  Bowles,  172 

if  a  person  is  in  existence  a  convey-  111.  521,  50  N.  E.  122. 

ance  to  him  by  a  wrong  name  passes  16  Hunter   v.   Watson,   12   Cal.   363. 

title.     Wilson  v.  White,   84   Cal.   239.  17  Neal  v.  Nelson,  117  N.  C.  393. 

12Hellreigil  v.  Manning,  97  N.  Y.  ISWhitaker  v.  Miller,  83  III.  381. 


§  203]  ERRORS,  OMISSIONS  AND  DEFECTS.  217 

grantee  shall  be  specifically  named.  It  is  enough  that  sufficient 
appears  to  distinguish  him  from  the  rest  of  mankind,  and  if,  by 
proper  construction,  this  can  be  done  the  grant  will  not  fail.  Thus, 
where  a  deed  recited  that  the  grantor  in  consideration  of  a  sum 
of  money  paid  by  John  Smith  "does  hereby  convey  unto  the  said 
all  right,  title  and  interest  in  and  to"  property  then  de- 
scribed, the  deed  was  held  a  valid  conveyance  to  John  Smith.  This 
presents  a  familiar  case  of  omission  by  an  unskilled  draughtsman. 
The  recital  that  the  money  was  paid  by  John  Smith  raises  a  strong 
but  not  conclusive  presumption  that  he  was  intended  for  the 
grantee,  but  the  imperfect  granting  clause  recites  that  the  grant 

is  to  "the  said ,"  clearly  indicating  some  person  theretofore 

named.  The  only  persons  to  whom  reference  could  be  made  are 
the  grantor  and  John  Smith,  hence  the  court  in  construing  the 
deed  held  that  the  grantee  was  sufficiently  identified. ^^ 

§  203.  Disparity  of  Dates.  A  frequent  defect  in  deeds  is  a 
disparity  of  dates,  that  is,  the  acknowledgment  antedating  the 
execution,  etc.  This  is  a  minor  defect,  however,  that  does  not  go 
to  the  foundation  of  the  deed,  for  the  date  may  be  disregarded  in 
a  proper  case  and  the  deed  will  yet  stand. 

In  point  of  form  the  date  is  not  essential,  and  is  valuable  chiefly 
as  an  evidence  of  time  in  passing  on  the  rights  of  parties,  or  fixing 
the  status  of  the  conveyance  in  respect  to  other  deeds  or  transfers 
of  title.  For  the  purpose  of  operative  conveyance  the  time  of 
delivery  is  the  true  date,  and  this  may  always  be  shown  by  parol. 
Attention  is  called  to  defects  or  disparities  of  dates  by  a  broad 
dash  or  underscore,  as 

Dated  June  —  1883,  or  Dated  June  13,  1883. 

In  the  latter  case,  both  dates,  or  as  many  as  appear  irreconcilable, 
must  be  treated  in  this  manner,  and  the  disparity  will  thus  be 
brought  prominently  before  the  notice  of  the  person  perusing  the 
abstract. 

§204.  Technical  Phrases.  Whenever  it  is  apparent  that  a 
grantor  has  used  a  technical  word  to  express  an  idea  different  from 
its  technical  signification,  a  court  will  construe  it  according  to  the 
manifest  intention  of  the  gi-antor,'*»  but  in  ascertaining  such  intent, 

lOHenning   v.  Pasehke,  9   N.  Dak.  20  C.  P.  II.  R.  Co.  v.  Beal,  47  Cal. 

489,  151. 


218  ABSTRACTS   OP   TITLE,  [§  204 

wliore  the  words  einployed  are  not  technical,  they  must  be  taken 
in  their  usual  acceptation.^^ 

In  convej^ancing  a  large  number  of  phrases  have  obtained  cur- 
rency, which,  practically,  neither  add  to  nor  detract  from  the  force 
of  that  which  precedes  or  follows,  but  are  retained  and  used  in 
much  the  same  manner  as  numerous  other  incidents  of  modern 
deeds,  ratlier  for  their  suppositious  efficacy  than  for  any  real 
utility.  Of  this  class  is  the  language  "more  or  less,"  which  is 
extensively  used  in  deeds  and  contracts  for  the  sale  of  land.  This 
term  must  be  understood  to  apply  only  to  small  excesses  or  de- 
ficiencies attributable  to  the  variation  of  the  instruments  of  sur- 
veyors, etc.^^  In  like  manner  the  words  "knowni  as,"  in  a  de- 
scription in  a  deed,  is  a  mere  formula  and  has  no  restrictive  effect  .^^ 
"And  all  the  buildings  thereon,"  etc.,  have  no  legal  signification.'^* 
So,  also,  man}'  phrases  in  the  body  of  the  deed  are  witlhout  force ; 
as,  the  words  "to  his  and  their  proper  use  and  behoof,"  etc.,  fol- 
lowing the  words  of  limitation.  These  words  have  no  particular 
meaning  or  effect  in  determining  either  the  extent  of  the  interest 
conveyed,  or  the  nature  and  quality  of  the  estate  intended  to  be 
vested.  In  deeds  of  bargain  and  sale,  at  the  present  time,  they 
serve  no  office  whatever.^s 

Words  and  phrases  similar  to  the  foregoing,  detract  nothing 
from  the  deed  by  their  omission  and  do  not  call  for  notice,  but 
where  technical  words  of  limitation,  purchase,  inheritance,  etc., 
are  omitted  in  deeds  purporting  to  convey  only  limited  or  special 
interests  or  estates,  it  will  sometimes  become  advisable  to  show 
such  omission,  together  with  such  parts  of  the  habendum,  or  other 
operative  portions  of  the  deed,  as  will  supply  the  missing  words 
or  indicate  the  undefined  intent  of  the  grantor.  The  intent,  when 
apparent,  and  not  repugnant  to  any  rule  of  law,  will  always  con- 
trol technical  terms;  for  the  intent  and  not  the  words,  is  the 
essence  of  every  agreement.^* 

§  205.  Misdescription — Uncertainty.  Ambiguous  and  uncertain 
descriptions,  particularly  when  composed  of  calls  for  courses  and 

21  Bradshaw  v.  Bradshaw,  64  Mo.  deception  or  mistake  amounting  to 
334.  fraud:     Wylly  v.  Gazan,  69  Ga.  506. 

22  Benson  v.  Humphreys,  75  Va.  23  Kueeland  v.  Van  Valkenburgh, 
196.     It  has  been  held,  however,  that  46  Wis;  434. 

a   qualification   of   the   quantity   of   a  24  Crosby  v.  Parker,  4  Mass.  110. 

lot   of   land   sold   as   "more   or  less"  25  Jackson  v.  Gary,   16  Johns.  302; 

will  cover  any  deficiency  not  so  gross  Brown  v.  Renshaw,  57  Md,  67. 
as  to  justify  the  suspicion  of  wilful  26  Callins  v.  Lavelle,  44  Vt.  230. 


§  205]  ERRORS,   OMISSIONS   AND  DEFECTS.  219 

distances,  are  among  the  most  common  defects  found  in  modern 
deeds.  They  arise  frequently  from  the  carelessness  and  inatten- 
tion of  the  conveyancer,  but  more  often,  perhaps,  from  a  false 
economy  in  the  survey,  the  draughtsman  computing  his  distances 
and  framing  his  courses  by  reference  to  some  former  map  or  sur- 
vey, and  not  by  actually  running  the  lines  in  the  field.  This  very 
convenient,  but  equally  pernicious  system,  prevails  to  an  alarming 
extent  in  modern  conveyancing,  and  when  attempted  by  incom- 
petent hands,  is  often  followed  by  uncertainty  if  not  fatal  error. 
In  all  cases  of  description  by  metes  and  bounds,  the  description  in 
the  deed  under  examination  should  be  compared  with  both  former 
and  subsequent  ones  as  given  in  other  conveyances,  and  with  the 
true  description  of  the  tract  that  forms  the  subject  of  the  exam- 
ination. This  task  should  be  performed  both  by  the  examiner  and 
by  counsel,  and  is  a  precaution  never  to  be  omitted. 

An  imperfect  or  uncertain  description  does  not,  of  itself,  vitiate 
the  conveyance,  provided  it  affords  definite  means  by  which  the 
identity  of  the  premises  may  be  established;  as  by  reference  to 
certain  known  objects  or  things,^'''  or  to  perfect  descriptions  in  other 
deeds.^'  In  the  absence  of  references,  or  other  identifying  circum- 
stances, if  the  land  be  so  inaccurately  described  as  to  render  its 
identity  wholly  uncertain,  the  grant  is  void.^^  The  same  rule 
applies  with  equal  force  to  exceptions  and  reservations  from  the 
grant,  for  although  the  grant  may  prevail,  the  exception  may  be 
void  for  uncertainty.^®  What  is  here  meant,  however,  is  legal  in- 
validity, for  notwithstanding  that  at  law  a  deed  may  be  void  on 
its  face  for  want  of  a  definite  description  of  the  land  intended  to 
be  conveyed,  yet,  in  equity,  it  may  be  reformed  upon  proper  alle- 
gations and  proof  of  extrinsic  facts.^^ 

Imperfect  descriptions  creating  uncertainty  by  reason  of  vague- 
ness are  common,  particularly  in  case  of  tax  deeds;  as,  "200  acs. 
in  Sec.  2, ' '  etc. ;  no  particular  portion  of  the  section  being  desig- 
nated. A  deed  is  not  necessarily  void  for  uncertainty  where  land 
is  described  by  a  general  name  or  designation,  which  by  extrinsic 
evidence  can  be  fully  identified,^^  and,  as  a  rule,  a  deed  will  only  be 
held  void  for  uncertainty,  where,  after  resort  to  oral  proof,  it  still 
remains  a  matter  of  conjecture  what  was  intended  by  the  instru- 

27  Coats  V.  Taft,  12  Wis.  388;  490;  Rollin  v.  Pickett,  2  Hill  (N. 
Smith  V.  Crawford,  81  111.  296.  Y.),   552. 

28  Russell  V.  Brown,  41  111.   184.  30  Thayer    v.    Torry,    37    N.    J.    L. 
29Calcord     v.     Alexander,     67     111.       339. 

581;    Campbell    v.    Johnson,    44    Mo.  81  Greene  v.  Dickson,  119  Ala.  346. 

247;    Dickens    v,    Barnes,    79    N.    C.  32  Tucker   v.   Field,   51   Miss.    191; 


220  ABSTRACTS   OF   TITLE.  [§  206 

ment.^'     Tt  will  bo  undorstnod,  liowever,  lliaf  this  alhules  only  to 
latent  ambiguity.** 

§206,  Misdescription — Omission.  One  of  the  principal  ele- 
Jiionts  of  niicortainty  in  descriptions  is  produced  by  omissions  of 
essential  pai-lieulars,  tliouj;!!  the  efTect  of  such  omissions  is  not  the 
same  in  all  the  States.  The  name  of  Ihe  county  and  State  in  which 
the  land  is  situate  usually  precedes,  and  sometimes  follows  the  de- 
scription. Its  insertion  tends  to  greater  certainty,  yet  the  entire 
omission  of  tliis  particular  is  of  minor  consequence,  provided  the 
section,  town  and  range  is  correctly  stated,  as  there  can  be  but 
one  locality  answering  that  description,^^  but  a  description  giving 
simply  the  subdivision  of  the  section,  arid  omitting  the  section, 
town  and  range,  would  be  so  defective  that  it  would  convey  noth- 
ing,*^ even  though  the  county  and  State  were  given.*''  A  very 
common  omission  is  found  in  the  matter  of  the  meridian,  as  where 
lands  are  described  as  ''Section  10,  Town  39,  North  Range  14 
East."  The  insertion  of  the  county  and  State  will  serve,  in  large 
measure,  to  correct  the  uncertainty  thus  created  but  should  the 
county  and  State  be  also  omitted  the  description  is  fatally  de- 
fective unless  aided  by  extrinsic  evidence. 

But,  as  prcviousl}^  stated,  a  material  omission  will  not  usually 
invalidate  an  instrument,  where  other  adequate  elements  of  iden- 
tification exist.*' 

§207.  Misdescription — Quantity.  A  recital  in  a  conveyance 
of  land  that  the  tract  contains  a  certain  number  of  acres,  unless 
there  is  an  express  covenant  as  to  quantity,  will  always  be  regarded 
as  a  part  of  the  description  merely,  and  if  inconsistent  with  the 
calls  of  the  deed,  will  be  rejected  as  surplusage.*®  Such  a  recital 
aids,  but  docs  not  control,  the  description  of  the  grant.  But  a 
grant   of  a  certain  (piantity  of  land,  to  be  taken   from   a  larger 

Smith  V.  Proctor,  1,39  N.   C.   314,   .51  but  coniparo  'Riitlor  v.  Davis,  .T  Noh. 

S.  E.  889,  2  L.  n.  A.  (N.  S.)  172.  521. 

38  Smith    v.    Crawford,   81    111.    29fi.  87  Such   a  deed,   thoujjh   inoporativo 

84  Bowers  v.  Andrews,  52  Miss.  596.  as     a     conveyance,     would     raise     an 

36  Howe   V.   Williams,   50   Mo.   252;  equity  in  the  land  sought  to  be  con- 

Bcal   V.   Blair,  83   Iowa,   318;    Slater  veyed  in  favor  of  the  grantee.    Lloyd 

V.   Breese,  36  Mich.   77;    Slckmon   v.  v,  Bunce,  41  Iowa,  660. 

Wood,  69  111.  329 ;  compare  Lloyd  v.  38  Slater  v.  Breese,  36  Mich.  77. 

Bunce,  41  Iowa,  660.  39  Fuller  v.  Carr,  33  N.  J.  L.  157; 

86  Tollenson   v.   Gunderson,    1   Wis.  Campbell    v.    Johnson,    44    Mo.    247; 

113;   Fuller  v.  Fellows,  30  Ark.  657;  Ufford  v.  Wilkins,  33  Iowa,  110. 


§  208]  ERRORS,   OMISSIONS    AND   DEFECTS.  221 

tract,  with  no  other  or  more  definite  description,  is  void  for  un- 
certainty.*** 

§  208.  Defective  Covenants.  Defective  covenants  form  a  fruit- 
ful source  of  litigation,  as  well  as  of  vexation  and  annoyance,  and 
the  examiner  should  devote  especial  care  in  abstracting  this  por- 
tion of  the  deed,  to  the  end  that  through  his  negligence  the  intend- 
ing purchaser  may  not  also  buy  a  lawsuit.  The  majority  of  these 
errors  arise  through  the  stupidity  or  carelessness  of  incompetent 
draughtsmen  in  the  use  of  printed  forms,  and  unless  closely  scru- 
tinized they  will  sometimes  escape  the  eye  of  even  an  expert 
examiner.  A  familiar  example — one  occurring  more  frequently, 
perhaps,  than  any  other — is  in  the  commencement  of  the  collective 
covenant  clause,  which  reads:  "And  the  said  parties  of  the  first 
part  for — ."  Here  follows,  in  the  printed  blank,  a  space  intended 
to  be  filled  by  the  conveyancer,  with  a  personal  pronoun  descriptive 
of  the  granting  party  or  parties.  The  conveyancer  neglects  to  fill 
this  space;  and  the  clause  continues,  ''their  heirs,"  etc.,  "do 
covenant,"  etc.  Here  there  is  certainly  no  direct  covenant  on  the 
part  of  the  granting  parties,  and  in  a  similar  case  in  Illinois,  it 
was  held  that  the  legal  effect  of  a  covenant  of  this  character  is  not 
that  the  grantors  will  defend  the  title,  but  that  the  same  shall 
be  defended  by  their  heirs,  etc. ;  that  it  does  not  give  a  right  of 
action  against  grantors  on  the  loss  of  the  title,  but  provides  a  rem- 
edy against  their  legal  and  personal  representatives;  that  it  ex- 
empts the  grantors  from  personal  liability,  but  binds  their  de- 
scendants in  respect  of  the  estate  that  may  be  cast  upon  them; 
that  it  is  not  like  a  covenant  that  a  person  who  is  not  a  party  to 
the  deed  shall  warrant  and  defend  the  title,  for  in  such  case,  upon 
the  eviction  of  the  grantee,  and  the  failure  of  such  third  person 
to  comply  with  the  terms  of  the  covenant,  an  action  might  be 
maintained  against  the  grantor,  on  the  familiar  principle  that  what 
a  party  undertakes  shall  be  performed  by  another,  he  must  him- 
self perform  on  the  default  of  that  other.  Here,  the  covenant  is 
that  the  act  shall  be  performed  by  parties  who  can  have  no  legal 
existence  during  the  lives  of  the  grantors,  and  until  their  decease 
there  is  no  person  living  who  can  be  called  upon  to  avouch  the 
title." 

40  Smith  v.  Proctor,  139  N.  C.  314,  error  above  indicated  is  common,  and 

51    S.    E.    889,   2   L.   R.   A.    (N.   S.)  can  be  found  in  books  of  "practical 

172.  forins. "    See  "New  Wisconsin  Form 

41E.ufner  v.  McCk)nnel,  14  111.  168;  Book,"  p.  92,  form  No.  2. 
Traynor  v.  Palmer,  86  lU.  477.     The 


222  ABSTRACTS   OF   TITLE.  [§  208 

A  covenant  by  the  grantors — "for  them — heirs,"  etc. — has  been 
construed,  "themselves,  their  heirs,"  etc.,  and  held  to  be  the 
covenants  of  grantors.*'^  If  the  grantors  covenant  for  themselves, 
the  neglect  to  insert  the  words  "their  heirs,"  etc.,  after  the  allusion 
to  the  grantors,  is  only  a  minor  defect,  and,  while  it  calls  for  no- 
tice, is  attended  with  no  evil  consequences.  The  legal  effect  of  the 
covenant  would  be  the  same  if  all  reference  to  the  heirs,  executors 
and  administrators  were  omitted,*'  and  this  applies  as  well  to 
grantees  as  to  grantors. 

§  209.  Defective  Acknowledgment.  The  ofifice  of  the  acknowl- 
edgment is  to  authenticate  the  deed,  but  to  be  effective  for  this 
purpose,  it  must  conform  to,  or  substantially  follow,  the  directions 
of  the  statute,  both  as  to  the  certifying  officer  and  the  form  and 
substance  of  the  certificate.  The  certificate,  however,  is  no  part 
of  the  deed,  but  only  evidence  of  its  execution,  and,  like  all  other 
evidence,  should  be  reasonably  considered  and  construed.**  A  sub- 
stantial compliance  with  the  statute  prescribing  its  form  and 
requisites  is  all  that  is  required,*^  and  minor  defects,  not  going  to 
the  essence  of  the  acknowledgment,  may  be  disregarded. 

Clerical  errors  are  common,  and  arise  mainly  in  the  use  of 
printed  forms,  where  blanks  are  improperly  filled  or  passed  over 
without  filling.  Courts  are  always  inclined  to  construe  such  de- 
fects liberally,*®  and  only  purchasers  for  value  can  take  advantage 
of  a  defective  acknowledgment.*'  Where  a  certificate  stated  that 
"Personally  appeared  before  me  P.  H.  and  E.  H.,  his  wife,  who 

personally  known  to  me,"  etc.,  omitting  "are"  after  "who," 

it  was  held  that  such  omission  did  not  impair  the  deed,  as  "who" 
might  be  disregarded  as  superfluous,  and  the  certificate  would  then 
be  correct.*®  So  where  the  word  "appeared"  was  omitted  after 
the  phrase  "before  me  personally,"  the  omission  was  held  to  be  a 
clerical  error,  and  not  fatal  to  the  validity  of  the  acknowledg- 
ment;*® again,  a  certificate  that  A  "to  me  well  known,"  etc.,  was 
held  to  be  substantially  in  the  form  prescribed  by  statute,  viz. : 

42Bakrr  v.   Hunt,  40  111.   264.  60;   Fishor  v.   Butcher,  19  Ohio,  406; 

43  Hall  V.  Bumstead,  20  Pick.  2;  McCardia  v.  Billinfrs,  10  N.  Dak. 
Bell  V.  Boston,  101  Mass.  506.  373;    Merritt    v.    Yates,   71    111.    636; 

44  Harrington  v.  Fish,  10  Mich.  Durst  v.  Daugherty,  81  Tex.  650,  17 
415.  S.  W.  388. 

45  Calumet,  etc.,  Co.  v.  Russell,  68  47  Mastin  v.  Halley,  61  Mo,  196. 
111.  426 ;  Carpenter  v.  Dexter,  8  Wall.  48  Hartshorn  v.  Dawson,  79  111.  108. 
513;  Summer  v.  Mitchell,  29  Fla.  179.  49  Scharf enburg  v.  Bishop,  35  Iowa, 

46  Scharf  enburg   v.    Bishop,   35    la.  60. 


§  209]  ERRORS,   OMISSIONS    AND   DEFECTS.  223 

that  A  "known  to  me  to  be  the  person  whose  name  is  subscribed 
to  the  foregoing  instrument,  acknowledged,"  etc.,^**  and,  generally, 
when  the  defect  can  be  reconciled,  or  does  not  defeat  the  acknowl- 
edgment by  indefiniteness  or  uncertainty,  it  will  not  invalidate.*^ 

Another  common  defect,  and  one  that  raises  a  very  embarrassing 
question,  is  presented  in  the  case  of  a  misplaced  or  improper  pro- 
noun. In  most  printed  forms  the  recital  of  acknowledgment  reads, 
"and  acknowledged  that — he — signed,  sealed,  delivered,"  etc.,  the 
purpose  of  this  "labor  saving"  device  being,  to  allow  the  blanks 
before  and  after  the  word  "he"  to  be  filled  by  letters  that  shall 
make  the  words  "she"  or  "they"  according  as  the  exigencies  of 
the  case  may  require.  The  careless  or  ignorant  draughtsman  fre- 
quently neglects  to  avail  himself  of  the  device  and  the  deed  goes 
forth  with  an  ambiguous  recital  of  one  of  the  essential  facts  of  ac- 
knowledgment. The  mistake  often  occurs  in  the  case  of  a  joint 
acknowledgment  by  husband  and  wife  and  the  effect  of  the  cer- 
tificate, in  such  event,  is  that  the  parties  appeared  before  the  offi- 
cer and  acknowledged  that  "he,"  the  husband,  executed  the  in- 
strument. Now  it  is  undoubtedly  true,  under  the  general  trend  of 
the  decisions,  that  obvious  errors  or  omissions,  clearly  appearing 
upon  the  face  of  the  certificate  to  be  clerical  in  their  nature,  will 
not  invalidate  the  acknowledgment,  and  that,  before  a  certificate 
will  be  held  fatally  deficient,  there  must  be  an  absence  of  some 
essential  fact  of  a  substantial  character.  But,  is  not  an  omission 
like  the  one  now  under  consideration  a  matter  of  substance?  In 
a  recent  case  where  the  question  w^as  presented  it  was  held  that 
it  would  render  the  whole  sentence  useless  and  meaningless,  so  far 
as  the  wife  was  concerned,  to  place  upon  it  the  construction  that 
she  appeared  before  the  notary  and  acknowledged  that  her  hus- 
band executed  the  deed,  yet  that  such  construction  must  be  had 
unless  it  was  held  that  the  word  "he"  was  not  changed  to  "they" 
through  a  clerical  oversight.  To  hold  the  former,  it  was  contended, 
wauld  be  a  strained  and  technical  construction  of  the  language 
used,  and  so  the  certificate  was  sustained.*^  In  another  case,  where 
two  persons  had  signed  and  acknowledged  a  deed,  and  the  notary 
had  made  the  same  mistake,  it  was  held  that  the  word  "each" 
would  be  supplied  by  construction.^^  ^^  present,  the  general  rule 
would  seem  to  be,  that  where  grammatical  errors  are  made  in  cer- 

SOWatkins  v.   Hall,   57   Tex.   1.  63  Hughes  v.  Wright,  100  Tex.  511, 

SlOgden  V.  Walters,  12  Kan.  282.  101  S.  W.  789,  11  L.  R.  A.  (N.  S.) 
52McCardia  v.  Billings,  10  N.  Dak.       643. 

373;    see  also,  Montgomery  v.  Horn- 

berger,  16  Tex.  Civ.  App.  28. 


224  ABSTRACTS   OF   TITLE.  [§  209 

tificates  of  acknowledgment  the  courts  will  disregard  obvious  mis- 
takes and  read  into  the  certificate  the  proper  word  if  such  word 
can  easily  be  ascertained.^* 

A  material  omission,  unaided  by  other  circumstances,  will  vitiate 

the  acknowledgment,  as  where  purporting  to  be  made  by  

Sniitli,  without  other  designation  of  the  person ;  ^^  but  it  has  been 
held  that  where  the  certificate  omits  the  name  of  grantor,  if  it  yet 
shows  that  the  party  who  appeared  before  the  officer  was  the 
grantor,  and  that  he,  and  no  one  else  appeared  and  acknowledged,*^ 
or  if  he  is  referred  to  by  name  in  the  wife's  acknowledgment,*"^  this 
will  be  sufficient.  In  all  cases  the  error  or  omission  should  be 
clearly  indicated  by  the  examiner,  and  in  such  a  manner  that 
counsel  can  pass  upon  it  with  relation  to  the  context.  Hence  so 
much  of  the  certificate  should  be  presented,  in  all  cases  which  seem 
to  require  it,  as  will  effectuate  this  end. 

A  defect  of  frequent  occurrence  will  be  found  in  disparity  of 
dates,  as  where  the  date  of  the  deed  is  subsequent  to  the  date  of 
acknowledgment;  yet  this  error,  while  it  calls  for  notice,  is  of  minor 
importance  and  does  not  constitute  a  valid  objection  to  the  title.** 
Such  antedating  is  usually  the  result  of  clerical  mistake  and  is  so 
construed  in  the  absence  of  any  matters  calculated  to  raise  a  con- 
trary presumption,  and  as  the  officer  in  taking  an  acknowledgment 
is  required  to  certify  both  the  day  and  the  year  he  will  be  pre- 
sumed to  have  performed  his  duty  and  will  not  be  supposed,  with- 
out proof,  to  have  taken  the  acknowledgment  before  the  deed  was 
in  fact  executed.*^ 

§210.  Defective  Acknowledgment — Continued.  A  certificate 
in  which  the  person  taking  the  acknowledgment  gives  himself  no 
official  designation  or  title  is  fatally  defective,  for  an  acknowledg- 
ment or  proof  amounts  to  nothing  unless  it  be  taken  by  an  au- 
thorized officer,  and  whether  the  person  be  authorized  or  not,  is  a 
fact  which  should  appear  in  the  certificate  of  the  officer  himself.^" 
But  when  it  appears  from  the  certificate  that  it  was  taken  by  an 
authorized  officer,  it  is  not  necessary,  nor  is  it  customary,  for  him 
to  state  in  so  many  words,  that  he  was  authorized  to  take  such 
proofs.^^     If  the  title  of  an  officer  taking  an  acknowledgment  is 

64Merritt  v.  Yates,  71  111.  636.  60  Lessee  of  Johnston  v,  Haines,  2 

66  Hiss  V.  McCabe,  45  Md.   77.  Ohio,   55;    Cassell   v.   Cook,   11   Ohio, 
eewilcoxon  V.  Osborn,  77  Mo.  621.  610. 

67  Magness  v.  Arnold,  31  Ark.  103.  61  Livingstone  v.  McDonald,  9  Ohio, 
68Dressel  v.  Jordan,  104  Mass.  407.  168. 

69  Cover  V.   Manaway,   115   Pa.   St. 
338. 


§  210]  ERRORS,   OMISSIONS   AND  DEFECTS.  225 

written  out  fully  in  the  body  of  the  certificate  it  has  been  held 
that  the  omission  of  such  title  from  the  signature  is  immaterial ;  ^^ 
if  the  title  of  the  officer  is  affixed  to  the  signature,  this,  it  seems, 
is  sufficient  without  mention  elsewhere,^^  and  in  some  cases  it  has 
been  held  that  the  use  of  initials  generally  understood  to  stand  for 
the  title  of  an  office  will  answer  the  same  purpose  as  the  full  title.^* 

A  question  sometimes  arises  with  respect  to  capacity  when  the 
actual  acknowledgment  is  taken  by  a  deputy,  and  not  by  the  officer 
in  person.  It  is  generally  held,  however,  in  the  case  of  court 
officers,  that  where  the  acknowledgment  purports  to  be  taken  by 
the  clerk  and  is  certified  in  his  name,  with  a  seal  of  court  attached, 
it  will  be  sufficient,  and  that  the  certificate  is  none  the  less  the 
act  of  the  clerk  because  made  by  his  deputy.^^  It  is  further  held, 
that  the  seal  of  a  court  affixed  to  a  certificate  carries  with  it 
a  presumption  that  it  was  properly  attached.^^ 

The  want  of  a  seal  is  usually  no  defect  where  the  land  conveyed 
is  within  the  certifying  officer's  jurisdiction,  yet  it  is  a  general 
rule,  that  whenever  a  certifying  officer  is  required  to  have  a  seal 
he  must  authenticate  his  certificate  under  his  official  seal,^''  as  well 
as  his  signature,  and  its  presence  is  usually  made  by  statute  an 
indispensable  requisite  when  the  officer  resides  beyond  the  State. 
The  form  of  the  notary's  seal  is  a  matter  of  minor  importance. 
The  recorder  is  not  required  to  make  a  fac  simile  of  the  impres- 
sion of  the  seal  upon  his  books,  and  generally  could  not  if  he  were ; 
ordinarily  he  is  permitted  to  show  it  by  a  scrawl,  the  record  then 
disclosing  the  fact  of  sealing  and  that  the  seal  used  purported  to 
be  a  seal  of  office.  This  is  about  all  that  is  required  and  persons 
dealing  upon  the  faith  of  the  record  will  be  protected  by  it.^* 

A  certificate  defective  in  venue  is  insufficient  for  failing  to  show 
the  locality  in  which  the  act  is  done,  though  this  may  be  cured  by 
the  certificate  of  conformity ,^^  or  even  by  the  seal,'''''  when  the 
county  only  has  been  omitted,  and  the  officer  has  authority  to  ex- 

62  Colby  V.  MeOmber,  71  Iowa,  469;  66  Small  v.  Field,  102  Mo.  104. 

Brown  v.  Farran,  3  Ohio,  140;   Lake  67  Mason  v.   Brock,   12   111.   273. 

Erie,  etc.,  E.  R.  Co.  v.  Whethans,  155 ;  68  Sonfield    v.    Thompson,    42    Ark. 

111.  514.  46;  Hammond  v.  Gordon,  93  Mo.  223; 

63Euss  V.  Wingate,  30  Miss.  440.  Jones  v.  Martin,  16  Cal.  166;   Griffin 

64  See,   Eowley   v.   Berrian,   12   111.  v.  Sheffield,  38  Miss.  359. 

198;   Euss  v.  Wingate,  30  Miss.  440;  69  Hardin   v.  Osborne,  60  111.  93. 

Final  v.  Backus,  18  Mich.  218;  Owen  70  Ckiniquy   v.    Bishop    of    Chicago, 

V.  Baker,  101  Mo.  407.  41  111.  148. 

65  Hope  V.  Sawyei-,  14  111.  254; 
Small  V.  Field,  102  Mo.  104;  Hern- 
don  V.  Eeed,  82  Tex.  647. 

Warvelle  Abstracts — 15 


226  ABSTRACTS  OP   TITLE.  [§  210 

ercise  his  office  in  any  part  of  the  State ;  but  this  omission  has  been 
held  in  Iowa  to  be  fatally  defective,  and  the  seal  inefficient  to  cure 
the  defect.'^  Defective  venue  frequently  arises  through  neglect 
to  fill  blanks  in  printed  forms,  but,  however  arising,  the  defect 
should  be  noticed  in  the  abstract.     The  following  is  a  suggestion: 

Certificate  of  acknowledgment  by  Thomas  Jones,  Justice  of  the 
Peace,  whose  venue  is,  "State  of  Illinois,  County  of ." 

In  a  properly  drawn  certificate,  the  date  as  well  as  the  place  of 
acknowledgment  should  appear,  yet  it  would  seem  that  the  want 
of  a  date  to  a  certificate  otherwise  good,  will  not  vitiate  it.'''^  An 
acknowledgment  taken  by  the  grantee  is  of  no  effect,  though  the 
deed  would  still  be  binding  between  the  parties  and  their  heirsJ^ 

The  main  defects  of  substance  are  a  failure  to  state  the  fact  of 
acknowledgment,  or  to  fix  the  identity  of  the  parties^*  These  are 
the  two  essentials  and  neither  can  be  dispensed  with.  The  cer- 
tificate must  state  the  fact  of  acknowledgment.  It  is  this  which 
forever  afterward  binds  the  party,  even  though  he  may  not  ac- 
knowledge the  instrument  freely  in  point  of  fact ;  yet  if  he  ac- 
knowledges properly,  he  is  afterward  estopped  to  deny  his  act  as 
against  subsequent  innocent  purchasers.  The  officer  is  bound  to 
know  and  certify  the  identity  of  the  person  making  the  acknowl- 
edgment. Such  person  must  be  known  to  him  as  the  person  who 
executed  the  instrument  and  must  be  so  certified.  A  certificate 
deficient  in  this  respect  is  fatally  defective.'* 

The  examiner  will  further  observe,  where  the  acknowledgment 
appears  to  have  been  taken  in  a  foreign  jurisdiction,  that  the 
officer's  certificate  conforms  to  local  regulations,  and  if  not,  that 
it  is  accompanied  by  a  certificate  of  conformity  to  the  law  of  such 
foreign  jurisdiction,  made  by  some  competent  officer.  In  the  case 
of  some  officers,  particularly  those  not  having  a  seal,  a  certificate 
of  magistracy  must  also  accompany  the  certificate  of  acknowledg- 
ment. Should  no  such  certificate  appear,  after  noting  the  defects 
or  divergence,  the  examiner  will  add : 

No  certificate  of  magistracy  or  conformity  shown  of  record. 

When  accompanied  by  such  certificate,  its  purport  should  appear, 
thus: 

TlWillard  v.  Cramer,  36  Iowa,  22.  Pendleton    v.    Button,    3    Conn.    406; 

72  Irving  v.  Brownell,  11  111.  402,  Short  v.  Conlee,  28  111.  219. 
TSHogans  v.  Carnith,  18  Fla.  587.  75  Callaway  v.  Fash,   50   Mo.   420; 

74  Bryan   v.    Ramirez,    8    Cal.    461;  Smith  v.  Garden,  28  Wis.  685. 


§  210]  ERRORS;,    OMISSIONS   AND  DEFECTS.  227 

Certificate  of  magistracy  and  conformity  by  Jno.  Smith,  Clerk 
of  the  Circuit  Court,  Cook  County,  III.,"^^  appended. 

Sometimes  the  fact  will  appear  that  the  officer  taking  the  ac- 
knowledgment was  authorized  to  take  proof  of  deeds  but  there  will 
be  nothing  to  show  that  his  certificate  conforms  to  the  law  of  his 
venue,  in  which  case  say: 

Certificate  of  magistracy,  hut  not  of  conformity,  by  Jno.  Smith, 
Clerk,  etc. 

If  desired,  a  note  of  this  kind  may  be  more  specific.  In  which 
case  say : 

Certificate  of  magistracy  by  Thomas  Jones,  Clerk  of  the  Circuit 
Court  of  Davies  County,  Indiana,  (per  deputy)  dated  Sept.  20, 
1915,  does  not  state  that  the  deed  is  executed  and  acknowledged 
in  conformity  with  the  laws  of  said  State. 

i 
In  case  of  foreign  notaries,  and  other  officers,  a  certificate  of 
magistracy  is  usually  required  by  statute,  but  where  the  notary's 
certificate  is  in  conformity  to  local  law,  the  certificate  of  magistracy 
and  conformity  need  not  be  noticed  in  the  abstract,  its  main  office 
being  to  cure  defects  of  form.  A  commissioner  appointed  by  the 
Governor  of  a  State  to  take  acknowledgments  of  deeds  in  another 
State,  is  an  officer  of  the  State  from  which  he  derives  his  appoint- 
ment. The  courts  of  that  State  are  bound  to  take  judicial  notice 
of  his  acts,  and  these  require  no  other  authentication  than  his  seal 
of  office.'"'  His  certificate,  however,  should  be  in  conformity  with 
the  laws  of  the  State  from  which  he  derives  his  authority.'''' 

A  properly  drawn  notarial  certificate  will  always  disclose  the 
officer's  jurisdiction,  and  where  a  defect  of  this  kind  occurs,  as 
where  the  officer  fails  to  state  that  he  is  a  Notary  Public  "in  and 
for  the  county  and  State  aforesaid,"  it  should  be  shown  by  a  brief 
note,  thus : 

'6  Here,  if  desired,  set  out  any  por-  clerk,  both  a  knowledge  of  the  hand- 
tion  of  the  certificate;  as  that  the  writing  and  his  belief  of  its  genuine- 
officer's  signature  is  genuine,  etc.  ness:  Wells  v.  Atkinson,  24  Minn.  161. 
The  unqualified  and  positive  affirma-  77  Smith  v.  Van  Guilder,  26  Ark. 
tion  that  the  magistrate's   signature  527. 

to   the   acknowledgment    is    genuine,  78Brannon   v.    Brannon,    2   Disney 

necessarily  implies,  on  the  part  of  the  (Ohio),  224. 


228  ABSTRACTS   OF   TITLE.  [§  210 

Certificate  of  acknowledgment  hy  "Ilenry  Brown,  Notary  Pub- 
lic," whose  venue  is,  "State  of  Illino'is,  County  of  Cool-."  Juris- 
diction of  officer  not  otherwise  shown. 

Material  omissions  by  certifying  officers  should  always  be  noted, 
particularly  where  they  have  no  seal  and  the  certificate  is  without 
other  forms  of  statutory  proof.    Thus : 

Certificate  of  achnou'lcdgment  by  Thomas  Jones,  Justice  of  the. 
Peace,  Erie  County.  State  not  named.  No  certificate  of  mag- 
istracy. 

§  211.  Repugnancy.  "Where  there  is  a  disagreement  or  incon- 
sistency between  two  or  more  clauses  of  a  deed,  it  is  a  general  rule 
tliat  the  earlier  clause  will  prevail  if  the  inconsistency  be  not  so 
great  as  to  avoid  the  instrument  for  uncertainty.'^'®  This  rule  is 
always  applied  where  an  estate  expressly  granted  is  followed  by 
a  reservation,  exception,  or  condition  which  destroys  the  grant. ^'^ 
In  the  matter  of  description,  where  there  is  a  clear  repugnance, 
effect  will  always  be  given  to  that  which  is  most  definite  and  cer- 
tain, and  which  will  carry  out  the  evident  intention  of  the  par- 
ties.®^ 

79Tubbs  V.  Gatewood,  26  Ark.  128;  81  Wade   v.   Deray,     50     Cal.     376; 

Green    Bay,    etc.,    Co.    v.-   Hewitt,    55      Kruse  v.  Wilson,  79  111.  233;  Bassett 
Wis.  96.  V.  Budlong,  77  Mich.  338. 

80  Cutler  v.  Tufts,  3  Pick.  277; 
Pynchon  v.  Sterns,  11  Met.  304; 
Rines  v.  Mansfield,  96  Mo.  394. 


CHAPTER  XV 


CONVEYANCES  BY  INDIVIDUALS 


212. 

Deeds  in  general. 

§229. 

213. 

Deeds  poll  and  indentures. 

§230. 

214. 

Construction  of  deeds. 

215. 

Validity. 

§231. 

216. 

Warranty  deeds. 

217. 

Abstract  of  warranty  deeds. 

§232. 

218. 

Notes. 

219. 

Quitclaim  deeds. 

§233. 

220. 

Abstract  of  quitclaim  deeds. 

221. 

Effect   of   covenants   in   quit- 
claim deeds. 

§234. 

222. 

Special  -warranties. 

§235. 

223. 

Statutory  forms. 

224. 

Common   law  conveyances. 

§236. 

225. 

Eelease. 

§237. 

226. 

Confirmation. 

§238. 

227. 

Surrender. 

§239. 

228. 

Assignment. 

Conveyances   in  futuro. 

Conveyances  of  special  inter- 
ests and  estates. 

Continued  —  Illustrations  of 
special   cases. 

Restrictive  and  conditional 
conveyances. 

Prohibited  conveyances  —  Ad- 
verse seizin. 

Continued  —  Fraudulent  con- 
veyances. 

Conveyances  subject  to  in- 
cumbrance. 

Dedication  by  deed. 

Resulting  trusts. 

Re-records  and  duplicates. 

Corrected  Records. 


§212.  Deeds  in  General.  In  the  United  States,  the  ancient 
technical  principles  relating  to  common  law  conveyances  seem  to 
be  in  a  great  measure  inapplicable.  The  tendency  of  modern  legis- 
lation, as  vrell  as  the  current  of  later  decisions,  has  been  to  sim- 
plify the  forms  of  conveyance  and  to  reduce  the  number  of  the 
methods.  The  deeds  commonly  in  use,  and  by  which  the  great 
bulk  of  real  estate  transactions  between  individuals  is  effected,  are, 
the  deed  of  bargain  and  sale,  popularly  known  as  "Warranty 
Deed,"  and  the  deed  of  release  and  quitclaim,  known  as  "Quit- 
claim Deed."  To  these  may  be  added  a  third,  a  deed  adapted 
from  the  old  deed  of  nonclaim,  combining  qualities  peculiar  to  both 
of  the  other  classes,  and  called  "Special  Warranty  Deed,"^ 
wherein  the  grantor  covenants  only  against  his  own  acts  and  those 
who  claim  under  him,  and  not  against  adverse  or  paramount  titles. 
They  are  all  effectual  to  convey  the  fee,  or  whatever  interest  the 
grantor  may  possess,  and  will  always  do  so  unless  a  contrary  inten- 
tion is  expressly  manifest  or  clearly  deducible  by  implication. 


1  The    above    enumeration,    though       forms,  is  in  reality   but  one  kind   of 
the     conveyances     assume     different      deed,  to  wit,  a  bargain  and  sale. 

229 


230  ABSTRACTS   OF   TITLE.  [§213 

§  213.  Deeds  Poll  and  Indentures.  The  operative  instruments 
for  tlie  conveyance  of  land  were  formerly  classed  as  "deeds  poll" 
and  "indentures,"  the  former  being  where  an  obligation  was  in- 
ourred,  or  an  estate  conveyed,  by  only  one  of  the  parties  to  the 
transaction,  the  other  being  a  mere  recipient;  the  latter,  on  the 
other  hand,  contained  mutual  transfers  or  covenants,  the  one  in 
exchanpre  for  the  other.  A  deed  poll  was  a  single  instrument, 
signed  by  one  party,  and  delivered  to  the  other ;  an  indenture  con- 
sisted of  two  or  more  parts,  of  the  same  tenor,  executed  in  dupli- 
cate by  both  parties,  and  interchangeably  delivered  by  one  to  the 
other.  The  name  "indenture"  is  said  to  have  originated  from  the 
practice  of  writing  both  parts  of  the  agreement  upon  one  parch- 
ment, and  then  cutting  them  asunder  in  acute  angles,^  the  parts  at 
the  place  of  separation  resembling  teeth.  Such  a  deed  was  said 
to  be  "indented."  The  phrase  "this  indenture"  still  forms  the 
initial  to  deeds  of  bargain  and  sale,  though  such  conveyances  are 
in  effect  deeds  poll,  and  atfords  another  instance  where  common- 
law  forms  of  expression  have  been  retained  after  their  original 
meaning  and  technical  significance  have  been  lost.* 

§  214.  Construction  and  Effect  of  Deeds.  The  general  con- 
struction of  deeds  is  favorable  to  their  validity,  and  although 
courts  cannot  give  effect  to  an  instrument  so  as  to  do  violence 
to  the  rules  of  language  or  of  law,  they  will  yet  so  construe  it 
as  to  bring  it  as  near  to  the  actual  meaning  of  the  parties,  as  the 
words  they  have  seen  fit  to  employ,  and  the  rules  of  law  will  ad- 
mit.* The  intention  of  the  parties,  when  it  can  be  ascertained, 
will  always  control,  if  by  law  it  may,  and  as  between  them  the 
deed  is  always  construed  most  strongly  against  the  grantor.^  When 
the  words  of  a  deed  are  so  uncertain  that  the  intention  of  the 

2  2  Hill  Abridgment,  280 ;  2  Wash.  powers  of  attorney  and  similar  docu- 

R^al  Prop.  587;  2  Sharswood's  Black  ments  the  deed  poll   form  is  always 

Com.  294.  preserved.       In    leases,     dual     agree- 

8  Adaptations    of    both    forms    are  ments,  and  instruments  of  a  bilateral 

still    in   use.      The    deed    poll   always  character   the   indenture  is  still   gon- 

commences  with  a  declaration  to  all  erally  employed. 

persons,  calling  upon  them  to  notice  4  Callins    v.    Lavalle,    44    Vt.    230 ; 

the  act  of  the  grantor.     The  phrase  Churchill  v.   Eeamer,   8   Bush    (Ky.), 

reads,    "Know     all     men    by    these  256;    Pcckham    v.    Haddock,    36    111. 

presents,"  etc.,  and  the  grant  is  usu-  38;    Hadden  v.   Shoutz,   15   111.   581; 

ally  in  the  first  person.     The  Inden-  Jackson  v.  Meyers,  3  Johns.  395. 

ture,  on  the  other  hand,  is  always  in  5  City   of   Alton   v.    Transportation 

the     third     person,     and     commences  Co.,  12  111.  38;  Jackson  v.  Hudson,  3 

"This    Indenture    withnesseth"    that  Johns.  375. 
the    grantor    has    conveyed,    etc.      In 


§  215]  CONVEYANCES   BY   INDIVIDUALS.  231 

parties  cannot  be  discovered,  the  deed  is  void.^  In  the  exposition 
of  deeds,  the  construction  must  be  upon  the  whole  instrument, 
and  with  a  view  to  give  every  part  of  it  meaning  and  effect,  and 
the  intent  when  apparent,  and  not  repugnant  to  any  rule  of  law, 
will  control  technical  termsJ  Where  a  deed  purports  to  convey 
all  the  interest  and  title  of  the  grantor,  effect  will  be  given  to  it 
accordingly,  although  he  actually  held  a  greater  interest  than  he, 
at  the  time  of  conveyance,  supposed  he  owned,  for  a  party  is 
bound  to  know  enough  about  his  title,  as  not,  by  his  want  of 
knowledge,  to  mislead  a  purchaser.* 

§  215.  Validity.  In  all  works  treating  on  conveyancing,  or  the 
alienation  of  real  property,  the  subject  of  validity  of  conveyances 
of  land,  as  affected  by  extraneous  evidence,  rightly  occupies  a  prom- 
inent position,  yet  in  a  work  of  this  character  it  can  receive  little 
more  than  passing  notice.  The  principal  facts  which  tend  to  in- 
validate deeds,  aside  from  defects  of  form  or  substance,  which 
appear  from  inspection,  are :  incapacity  of  the  parties ;  inadequacy 
of  consideration ;  fraud  in  the  inception ;  and  undue  influences  or 
duress  in  the  procurement;  all  of  which  must,  from  their  several 
natures,  be  shown  by  evidence  aliunde,  the  deed  upon  its  face 
being  regular  and  formalities  of  law  having  been  fully  complied 
with.* 

There  is  an  important  distinction  between  void  and  voidable 
deeds,  although  the  terms  are  often  used  indiscriminately.  A  deed 
absolutely  void  passes  no  title,  while  a  deed  which  is  voidable 
merely  may  be  the  foundation  of  an  unassailable  title  in  the  hands 
of  a  subsequent  purchaser  without  notice.^®  The  term  "void"  is 
seldom,  unless  in  a  very  clear  case,  to  be  regarded  as  implying  a 
complete  nullity;  but  it  is,  in  a  legal  sense,  subject  to  large  qual- 
ification in  view  of  all  the  circumstances  calling  for  its  applica- 
tion and  the  rights  and  interests  to  be  affected  in  a  given  case.^^ 
Statutes  not  infrequently  declare  acts  void,  which  the  tenor  of 
their  provisions  necessarily  makes  voidable  only.    Deeds  are  seldom 

6Rollin    V.    Pickett,    2    Hill.    522;  for  a  valuable  consideration,   without 

Jackson    v.    Rosvelt,    13    Johns,    97;  notice  of  any  outstanding  equity,  will 

Peoria  v.  Darst,  101  111.  671.  be  protected  against  such  equity,  even 

7Callins    v.    Lavalle,    44   Vt.    230;  though  he  himself   had  notice  there- 

Saunders  v.  Hanes,  44  N.  Y.  353.  of:    Peck  v.  Arehart,  95  111.  113. 

8  Thomas  v.  Chicago,  55  111.  403.  10  Crocker  v.  Ballangee,  6  Wis.  645. 

OA  purchaser  of  land  from  a  prior  H  Brown  v.  Brown,  50  N.  H.  538, 

bona   fide    holder    who    acquired    the  Kearney  v.  Vaughn,  50  Mo.  284. 
legal  title,  as  shown  by  the  records, 


^3^  ABSTRACTS  OP  TITLE.  [§  215 

void,  though  they  may  be  relatively  so,  and  incapable  of  legal 
effect  as  between  the  parties,  but  in  regard  to  the  consequences  to 
third  persons  the  distinction  is  highly  important,^'*  IMatters  in  pais 
arc  seldom  known  to  the  examining  counsel,  who  is  justified  in  pro- 
nouncing that  a  marketable  title  which  appears  so  of  record,  and 
which  in  fact  is  such,  until  assailed  or  set  aside  by  competent  au- 
thority. As  respects  subsequent  purchasers  without  notice,  the 
right  or  title  conferred  by  a  conveyance  is  to  be  determined  by 
the  instrument  of  transfer  as  recorded,  and  not  by  facts  in  pais 
or  other  instruments  not  recorded.^' 

Latent  ambiguities  and  defects  do  not  usually  avoid  a  convey- 
ance, and  a  deed  intended  to  correct  an  error  in  a  former  deed  by 
the  same  grantor,  will  cure  such  defect,  and  take  effect  by  relation 
as  of  the  time  when  the  erroneous  deed  was  given,  the  same  as  if 
it  had  been  reformed  in  equity.^* 

§216.  Warranty  Deeds.  The  most  familiar  form  of  convey- 
ance known  to  our  law  is  the  deed  of  bargain  and  sale  technically 
called  a  warranty  deed.  The  legal  import  of  a  deed  of  this  char- 
acter is  that  of  absolute  conveyance  of  the  interest  intended  and 
that  there  is  no  resulting  trust  in  the  grantor,  who  is  estopped  from 
ever  after  denying  its  execution  for  the  uses  and  purposes  men- 
tioned in  it,^^  while  its  name  is  derived  from  the  personal  covenants 
which  follow  the  habendum. 

The  operative  words  of  conveyance  in  this  class  of  deeds,  are 
''grant,  bargain  and  sell,"  which  in  many  States  are  allowed  to 
operate  as  covenants  of  seizin,  freedom  from  incumbrances,  and 
quiet  enjojTnent,^^  unless  their  statutory  effect  is  rendered  nuga- 
tory or  limited  by  express  words  contained  in  such  deed.^'  It  is 
still  a  common  practice  for  the  conveyancer  to  insert  in  warranty 
deeds,  as  well  as  in  other  classes  of  conveyances,  all  the  operative 
terms  used  in  transferring  land;  as,  "grant,  bargain,  sell,  remise, 
release,  alien,  convey  and  confirm,"  though  their  presence,  save 
where  they  imply  covenants,  is  no  longer  necessary.  This  was 
formerly  done,  that  the  instrument  might  take  effect  in  one  way 
if  not  in  another,  and  in  such  case  the  party  receiving  the  deed 
had  his  election  which  way  to  take  it.    Thus  according  to  the  words 

12  Bromly  v.  Goodrich,  40  Wis.  131 ;  14  Hutchinson  v.  E.  R.  Co.,  41  Wis. 
Seylar  v.  Carson,  69  Pa.  St.  81;  Van      541. 

Schaac    v.    Robbins,    36    Iowa,    201;  16  Kimball  v.  Walker,  30  lU.  482. 

Kearney  v.  Vaughn,  50  Mo.  284.  16  Prettyman  v.  Wilkey,  19  111.  235; 

13  Miller    v.   Ware,   31    Iowa,    524;  Hawk  v.    McCuUough,   21   111.   220. 
Peck  V.  Arehart,  95  111.  113.  17Finley  v.  Steele,  23  111.  56. 


§  217]  CONVEYANCES   BY  INDIVIDUALS.  233 

used,  he  might  claim  either  by  grant,  feoffment,  gift,  lease,  con- 
firmation or  surrender.  The  majority  of  the  foregoing  words  of 
grant  are  now  superfluous,  except  that  in  a  few  States  the  words 
"grant,  bargain  and  sell"  must,  under  the  statute,  be  construed  as 
express  or  implied  covenants,  for  seizin,  against  incumbrances, 
etc.,"  yet  the  rule  that  the  law  of  the  State  where  the  land  lies 
governs  the  interpretation  of  the  deed,  does  not  warrant  the  im- 
plication of  personal  covenants  not  authorized  by  the  law  of  the 
State  where  the  deed  was  made.  The  question,  whether  the  words 
shall  import  covenants,  must  be  decided  by  the  law  of  the  latter 
State." 

It  must  be  understood  that  some  words  evidencing  an  intention 
to  transfer  an  estate  must  appear,  but  the  conveyancer  has  a  choice 
of  a  number,  and  the  word  "convey,"  which  is  most  in  use,  fully 
expresses  the  intent,  and  is  effectual  for  all  purposes.^® 

§217.  Abstract  of  Warranty  Deed.  Tn  preparing  an  abridg- 
ment of  an  ordinary  deed  of  bargain  and  sale,  when  drawn  in  the 
usual  manner  and  unincumbered  by  any  unusual  conditions  or 
stipulations,  only  the  salient  features  are  necessary,  it  being  under- 
stood that  the  deed  is  in  form,  and  that  all  the  essential  requisites 
have  been  complied  with.  Were  this  otherwise  the  abstract  would 
become  unnecessarily  bulky  and  cumbersome,  and  defects  when 
shown  would  be  less  readily  detected.  This  is  the  universal  cus- 
tom of  abstract  makers,  and  the  method  seems  to  have  met  the 
approbation  of  the  legal  profession.  An  ordinary  deed  of  con- 
veyance is  sufficiently  presented  as  follows : 

_  _      „    .^,         _  ]      Warranty  Deed. 

John  Smith,  and  j     Dated  June  1,  1883. 

Mary  B.,  his  wife,         ^    Eecorded  June  28,  1882. 


to 
Thomas  L.  Jones 


Volume  28,  page  10. 
Consideration,  $1,000.00. 


Conveys  land  in  Racine  county,  Wr.?..  dei^crihed  as  lot  fourteen, 
of  hlock  twenty-eight,  of  EoswelVs  Addition  to  the  village  of  Em- 
metshurgh,  being  a  part  of  the  northwest  quarter  of  section  thirty- 

ISBrodie  v.  Watkins,  31  Ark.  319;  deed  in  fee  is  piven  in  4  Kent  Com. 

Finley  v.  Steele,  23  111.  56.  461;    and    see   TTutchina   v.    Carleton, 

19  Bethel  V.  Bethel,  54  Ind.  428.  19  N.  K.  487;  Bridj2;e  v.  Wellington, 

20  An  extremely  simple  form  of  a  1   Mass.   219. 


234  ABSTRACTS   OF   TITLE.  [§217 

six,  town   two  north,  range  fourteen,  cast  of  the  third  principal 
meridiam,. 

Aclxnou'lcdgcd  June  i,  1882.^^ 

The  foregoing  example  pre-supposes  good  work  on  the  part  of 
conveyancer  and  examiner,  and  that  the  instrument  as  shown  of 
record  is  regular  in  form  and  properly-  executed  and  acknowledged. 
It  further  carries  the  presumption  that  no  recitals  appear,  other 
than  those  common  to  all  deeds  of  bargain  and  sale,  and  that  all 
covenants  necessary  for  the  proper  assurance  of  the  estate  con- 
veyed are  inserted.  Should  the  examiner  desire,  however,  to  note 
the  covenants,  he  may  add: 

Fidl  covenants  of  seizin  and  warranty. 

In  most  of  the  States  a  formal  waiver  or  release  of  homestead 
rights  is  required  when  the  land  conveyed  has  actually  been  used 
as  a  homestead.  But,  for  safety,  and  to  obviate  any  questions  that 
might  thereafter  arise,  it  is  customary  to  insert  this  clause  in  all 
deeds  regardless  of  form  or  present  conditions  of  occupancy. 
Where  this  clause  is  found  it  should  always  be  noticed  in  the 
abstract,  as  its  absence  always  raises  a  question  on  its  examination 
by  counsel.    A  brief  mention,  however,  is  sufficient.    Thus : 

Homestead  rights  waived.  i 

Where  document  numbers  are  now  employed  in  the  registry  of 
deeds  these  should  always  be  shown  in  the  abstract.  The  number 
may  be  placed  among  the  preliminary  recitals  immediately  after 
the  book  and  page  of  the  record,  or,  it  may  be  written  in  the 
caption  below  the  names  of  the  parties.  The  latter  is  the  usual 
method.    In  either  case  only  a  mention  is  necessary.    Thus: 

Document  numter  583,624.  ' 

81  In  the  abstract  of  ancient  con-  heritanee  has  been  dispensed  with  in 

veyances  it  may  be  necessary  to  show  a  majority  of  the  States  for  upward 

a  trifle  more  than  is  here  noted.    The  of  fifty  years,  their  insertion  or  omis- 

words  of  inheritance  in  the  premises  sion  in   ancient  grants  will  have  but 

and   habendum    may    be    material   in  little   effect   on   the   titles   of   to-day, 

determining  the  nature  of  the  estate  which,     though    defective     originally, 

conveyed,  but  as  the  necessity  of  the  have  been  perfected  by  the  effluxion 

word  "heirs"  or  other  words  of  in-  of  time. 


§  219]  CONVEYANCES   BY   INDIVIDUALS,  235 

Defects  of  form  or  substance,  occm*ring  in  any  part  of  the  deed, 
must  be  suitably  noticed  as  suggested  in  the  preceding  chapter. 
In  ancient  deeds,  where  the  premises  are  imperfect  by  reason  of 
omission  of  words  of  inheritance,  the  habendum  may  be  shown 
thus: 

Habendum  to  heirs  and  assigns. 

§218.  Notes.  The  matter  of  examiner's  notes  has  already 
been  discussed.  These  should  be  appended,  whenever  practicable, 
immediately  after  the  deed  to  which  they  allude;  as,  in  the  fore- 
going example,  if  the  abstract  is  of  the  original  instrument  and 
not  of  the  record  thereof,  a  mention  of  the  fact  immediately  fol- 
lows same,  thus: 

Note. — The  particulars  of  the  foregoing  deed  taken  from    the 
original  instrument. 

§219.  Quitclaim  Deeds.  A  quitclaim  deed  is  as  effectual  for 
transferring  the  title  to  real  estate  as  a  deed  of  bargain  and  sale,^^ 
and  passes  to  the  grantee  all  the  present  interest  or  estate  of  the 
grantor,23  together  with  the  covenants  running  with  the  land, 
unless  there  are  special  words  limiting  and  restricting  the  con- 
veyance.^* 

But  while  a  quitclaim  deed  is  as  effectual  to  pass  title  as  a  deed 
of  bargain  and  sale,  still,  like  all  other  contracts,  it  must  be  ex- 
pounded and  enforced  according  to  the  intention  of  the  parties  as 
gathered  from  the  instrument,  and  if  the  words  used  indicate  a 
clear  intention  to  pass  only  such  land  or  interests  as  the  grantor 
then  owns,  lands  embraced  in  a  prior  valid  deed  have  been  held 
to  be  reserved  from  its  operation,  even  though  such  prior  deed 
remains  unrecorded.^^  It  is  a  rule,  however,  of  general  applica- 
tion, that  a  quitclaim  deed,  when  recorded,  takes  precedence  of  a 
prior  unrecorded  warranty  deed  from  the  same  grantor,  the  pur- 
chaser under  the  quitclaim  having  no  notice  of  the  prior  deed, 
and  there  being  no  words  therein  suggestive  of  an  earlier  con- 
veyance.'^^ 

M  Morgan   v.    Clayton,   61   111.   35;  24  Brady    v.    Spruek,    27    111.    478; 

Rowe  V.  Pecker,  30  Ind.  154;  Pingree  Marden  v.  Chase,  32  Me.  329. 

V.  Watkins,  15  Vt.  479.  25  Hamilton  v.  Doolittle,  37  111.  473. 

23  Nicholson  v.  Caress,  45  Ind.  479 ;  26  Brown    v.    Coal   Oil   Co.,   97   111. 

Carter    v.    Wise,    39    Tex.    273;    Car-  214;  Graff  v.  Middleton,  43  Cal.  341; 

pentier  v.  Williamson,  25  Cal.  158.  Marshall   v.   Roberts,   18   Minn.  405; 


236  ABSTRACTS   OF   TITLE.  [§219 

A  quitclaim  deed,  though  effectual  as  a  present  conveyance, 
when  unaccompanied  by  warranty  will  not  operate  to  carry  a  sub- 
sequently acquired  title,^'^  nor  can  one  who  takes  under  such  a 
deed  be  regarded,  in  all  respects,  as  a  bona  fide  purchaser  without 
notice  of  outstanding  titles  and  equities.'^^  The  authorities  are  not 
agreed,  however,  with  respect  to  the  character  to  be  accorded  to  a 
purchaser  by  quitclaim.  As  a  general  proposition  he  obtains  just 
such  title  as  the  vendor  had,  and  the  land  in  his  hands  remains 
subject  to  all  the  equities  attaching  to  it  in  the  hands  of  the 
vendor,  even  though  they  may  be  unknown  to  such  purchaser.*® 
But  it  would  seem  this  harsh  doctrine  is  not  applicable  in  all 
cases.  It  prevails  in  settling  conflicting  titles,  and  is  intended  to 
protect  equities  as  against  those  charged  with  notice  of  their  ex- 
istence, but  is  never  invoked  to  protect  a  fraudulent  grantor  who, 
by  false  representations,  induces  a  confiding  purchaser  to  believe 
that  he  acquires  an  indefeasible  title  under  a  quitclaim  deed.^'* 
In  the  absence  of  fraud,  however,  a  party  accepting  a  quitclaim 
deed  takes  the  risk  of  the  title,^^  for  where  a  person  purchases  of 
another  who  is  willing  to  give  only  a  quitclaim,  he  may  properly 
enough  be  regarded  as  bound  to  inquire  and  ascertain  at  his  peril 
what  outstanding  equities  exist,  if  any.  His  grantor  virtually  de- 
clares to  him  that  he  will  not  warrant  the  title  even  as  against 
himself,  and  it  may  be  presumed  that  the  purchase  price  is  fixed 
accordingly.^* 

It  is  generally  conceded,  even  in  those  States  which  hold  the 
strongest  against  quitclaims,  that  the  mere  form  of  a  deed  will 
not  conclude  the  parties  thereto  nor  prevent  a  vendee  thereunder 
from  claiming  the  protection  given  to  a  purchaser  in  good  faith. 
At  most,  a  deed  in  this  form  is  simply  a  warning;  it  imposes  the 
duty  of  inquiry,  and  it  charges  the  purchaser  with  notice  of  such 
outstanding  equities  or  interests  as  he  might  have  discovered  by 
the  exercise  of  reasonable  diligence.  But  where  the  vendee  has 
paid  a  fair  consideration,  has  duly  examined  the  public  records, 
and  finds  what  appears  to  be  a  clear  right  of  ownership  in  the 

Merrill   v.   Hutchinson,   45   Kan.   59;  v.    Brattle,   46   Iowa,   688;    Oliver   v. 

and  see,  Hope  v.  Blair,  105  Mo.  85.  Piatt,  3  How.   (U.  S.)  363. 

27Comstock  V.  Smith,  13  Pick.  116;  29  Mann  v.  Best,  62  Mo.  491;  May 

Jackson  v.  Winslow,  9  Cow.  13;  Har-  v.  LeClaire,  11  Wall.    (U.  S.)   217. 

riman  v.  Gray,  49  Me.  538;  Kinsman  SOBallou  v.  Lucas,  59  Iowa,  22. 

V.    Loomis,    11    Ohio,   475;    Miller   v.  31  Botsf ord  v.  Wilson,  75  111.  132; 

Ewing,  6  Gush.  34.  Thorp  v.   Coal  Co.,  48  N.  Y.  253. 

28Stoffel  V.  Sehroeder,  62  Mo.  147;  32  Winkler  v.  Miller,  54  Iowa,  476. 
Carter  v.  Wise,  39  Tei.  273;  Springer 


§  220]  CONVEYANCES    BY    INDIVIDUALS.  237 

vendor,  the  preponderating  rule  seems  to  be,  that  he  will  not 
be  affected  by  secret  equities,  liens,  interests  or  incumbrances  of 
which  he  had  no  notice  and  concerning  which  no  inquiry  was 
suggested.^^ 

On  the  other  hand,  there  is  a  line  of  cases  which  support  the 
doctrine  that  a  purchaser  by  quitclaim  of  a  valuable  tract  of  land 
for  a  merely  nominal  consideration  is  not  a  bona  fide  purchaser 
for  value  within  the  meaning  of  the  recording  acts.^*  In  such 
cases  it  is  held,  that  where  the  consideration  is  infinitesimal, 
merely  nominal,  compared  with  the  true  value  of  the  property, 
this  fact,  in  itself,  charges  the  purchaser  with  constructive  notice 
of  the  invalidity  of  his  title,  and  his  deed  will  not  take  precedence 
over  a  prior  or  unrecorded  deed.  Upon  this  point,  however,  the 
authorities  are  not  in  harmony  and  a  number  of  them  hold,  that 
a  valuable  consideration,  even  though  grossly  inadequate,  is  yet 
sufficient,  where  the  purchaser  has  no  actual  notice  of  outstanding 
equities  or  unrecorded  deeds,  to  entitle  him  to  precedence  over  one 
claiming  to  hold  under  a  prior  unrecorded  deed.^^ 

It  will  be  seen,  therefore,  that  a  quitclaim  deed  of  recent  date 
may  raise  an  important  question  of  title.  This  question  it  is  the 
duty  of  counsel  examining  the  abstract  to  solve  by  proper  in- 
quiries. 

It  is  a  general  rule  that  the  grantee  of  one  holding  under  a 
quitclaim,  when  such  grantee  holds  by  a  warranty  deed,  is  pre- 
sumed to  be  a  bona  fide  purchaser  for  value.  He  is  not  affected 
by  the  mere  fact  that  he  derives  title  through  a  quitclaim  deed, 
and  will  take  the  land  free  from  outstanding  equities  of  which  he 
had  no  notice.  It  is  the  policy  of  the  law  that  real  estate  titles 
should  become  matters  of  certainty  as  far  as  possible,  and  as  quit- 
claim deeds  occur  in  the  lives  of  many  titles,  a  different  rule  than 
the  one  above  set  forth  would  tend  to  unsettle  titles,  hinder  and 
delay  improvements  and  impair  the  selling  value  of  all  property 
so  affected. 

§  220.  Abstract  of  Quitclaim  Deeds.  As  in  the  case  of  simple 
warranty  deeds,  only  the  main  features  of  quitclaim  deeds  need 
be  shown  in  preparing  a  synopsis  of  same.    The  operative  granting 

83  Merrill  v.  Hutchinson,  45  Kan.  35  Ennis  v.  Tucker,  77  Kan.  510, 
59.  94  Pac.  803 ;  Strong  v.  Whybark,  204 

84  Ten  Eyck  v.  Witbeck,  135  N.  Y.  Mo.  341,  102  S.  W.  968,  12  L.  E.  A. 
40,  31   N.   E.   994;    Wisconsin  Eiver  (N.  S.)   240. 

Land   Co.   v.    Selover,   135   Wis.   594, 
116  N.  W.  265. 


238  ABSTRACTS   OF   TITLE.  [§  220 

words  of  deeds  of  this  nature  are  "remise,  release,  convey  and 
quitelaim;"  but  any  other  words  indicating  conveyance  will  do  as 
well  and  have  the  same  effect.  In  the  abstract  it  is  not  customai-y  to 
recite  these  words,  but  the  description  is  prefaced  by  the  simple 
word  "convey,"  the  examiner  indicating  the  nature  and  legal  im- 
port of  the  instrument  by  its  name.  Should  the  deed  contain  the 
statutory  words  which  raise  covenants,  they  then  become  material, 
for  the  instrument  in  effect  becomes  a  warranty  deed,  though  in 
form  a  quitclaim.^^  To  raise  a  statutory  covenant  the  very  words 
of  the  statute  must  be  used,"  and  if  only  a  part  of  them  appear, 
as  "grant,  sell  and  convej',"  the  deed  will  remain  a  quitclaim.^* 

It  is  the  custom  of  conveyancers  to  insert  after  the  words  of 
grant,  a  recital  of  the  estate  or  interest  conveyed;  as  all  "right, 
title,  interest,"  etc.,  but  this  is  the  legal,  as  well  as  the  statutory 
effect  of  the  deed,  and  the  omission  or  insertion  of  such  words  is 
immaterial  to  the  deed,  and  consequently  of  no  importance  to  the 
abstract,  except  when  they  clearly  indicate  a  prior  conveyance,  or 
afford  constructive  or  actual  notice  of  existing  equities.  Where  the 
deed  contains  covenants  of  any  kind,  particularly  of  warranty, 
these  words  become  material,  however,  and  in  some  States  they  are 
of  controlling  efficacy ,^^  as  per  the  succeeding  section. 

It  will  sometimes  happen  that  a  quitclaim  deed  is  found  which 
assumes  to  convey  only  a  special  interest.  When  such  is  the  case 
more  detail  will  be  required  and  the  special  interest  or  estate 
should  be  shown  substantially  as  in  the  deed.  The  following  will 
suggest  a  method  of  treatment  of  the  grant : 

Conveys  and  quitclaims  all  interest  acquired  or  derived  under 
and  hy  virtue  of  a  tax  deed  to  said  first  party  from  the  County 
Clerk  of  said  Cook  County,  dated  Aug.  1,  1916,  and  recorded  in 
Book  729  of  Records,  page  84,  to  the  premises  therein  descrihed  as 
follows;  to  wit:    Lot  ten  in  Block  twelve,  etc. 

§221.  Effect  of  Covenants  in  Quitclaim  Deeds.  Inasmuch  as 
the  particular  granting  words  employed  in  deeds  are  now  of  com- 
paratively little  moment,  if  one  conveys  land  with  a  general  cove- 
nant of  warranty  against  all  lawful  claims  and  demands,  he  can  not 
be  allowed  to  set  up  against  his  grantee,  or  those  claiming  under 
him,  any  title  subsequently  acquired,  either  by  purchase  or  other- 

36  DeWolf  V.  Hayden,  34  111.  525.  39  See    Holbrook    v.    Debo,    99    111. 

37Vipond  V.  Hurlbut,  22  111.  226.        382. 

38  Whitehall  v.  Gottwal,  3  Penn. 
323;  Frink  v.  Darst,  14  lU.  304; 
Young  V.  Clippinger,  14  Kan.  148. 


I  222]  CONVEYANCES   BY   INDIVIDUALS.  239 

wise,  and  such  new  title  will  inure  by  the  way  of  estoppel  to  the 
use  and  benefit  of  the  grantee,  his  heirs  and  assigns.**  But  where 
the  deed  does  not  on  its  face  purport  to  convey  an  indefeasible 
estate,  but  only  ''the  right,  title  and  interest"  of  the  grantor, 
though  containing  covenants  of  ownership,  warranty,  etc.,  it  will, 
it  seems,  only  convey  such  interest  in  the  land  as  the  grantor  has 
at  the  date  of  the  deed,*^  and  the  covenants  are  to  be  regarded  as 
having  reference  to  and  as  being  qualified  and  limited  by  the 
grant.*^  In  a  like  case,  where  the  grantor  agrees  to  warrant  the 
title  conveyed  only  as  against  all  claims  derived  from  himself,  he 
is  understood  to  refer  to  existing  claims  and  incumbrances,  and  not 
to  any  title  he  may  afterward  derive  from  a  stranger.*^ 

As  quitclaim  deeds  are  usually  drawn,  after  the  words  of  grant 
are  a  number  of  words  limiting  or  defining  the  estate  conveyed; 
as  "all  right,  title,  interest,  claim,  demand,"  etc.,  which,  in  what 
are  usually  termed  ''straight"  deeds,  may  be  disregarded;  but 
when  followed  by  covenants,  it  is  advisable  that  every  part  of  the 
instrument  which  tends  to  show  the  nature  and  extent  of  the 
granted  estate  be  set  out,  including  all  the  operative  parts  of  the 
premises  and  the  habendum. 

A  distinction  has  been  made  by  some  courts  between  such  deeds 
as  quitclaim  or  release  the  land  itself  and  such  as  merely  release 
whatever  interest  the  grantor  may  have  in  the  land,**  and  though 
the  distinction  does  not  always  seem  to  rest  in  sound  legal  reason, 
yet  where  such  doctrine  obtains,  no  other  safe  course  is  open  to 
the  examiner  than  that  above  indicated,  and  it  is  immaterial 
whether  the  deed  be  one  of  the  quitclaim  or  non-claim.*^ 

§222.  Special  Warranties.  There  is  in  common  use  in  the 
United  States,  though  it  would  seem  to  be  rarely  employed  in 
England,  a  deed  of  conveyance,  with  a  limited  warranty,  variously 
known  as  a  "special  warranty"  or  deed  of  "non-claim."  In  its 
original  form  the  non-claim  was  inserted  immediately  after  the 
habendum,  without  the  usual  words  of  covenant  being  prefixed, 
and  purported  to  be  a  denial  of  any  further  rights  in  the  grantor 

40Comstock  v.  Smith,  13  Pick.  119.       v.  Moore,  14  Cal.  474;   Allen  v.  Hol- 

41  Brown  v.  Jackson,  3  Wheat.  (U.  ton,  20  Pick.  458;  Holbrook  v.  Debo, 
S.)  449;  Bowen  v.  Thrall,  28  Vt.  382;       99  111.  372. 

Blanchard      v.      Brooks,      12      Pick.  44  See    Holbrook    v.    Debo,    99    111. 

(Mass.)    47.  •'572;    Blanchard   v.   Brooks,   12   Pick. 

42  Bell   V.    Twilight,    6   Foster    (N.       46. 

H.)  411;  Rawle  Gov.  for  Tit.  420.  46  0ibb8  v.  Thajer,  6  Gush.  32. 

43  Bogy  V.  Shoab,  13  Mo.  378;  Gee 


240  ABSTRACTS   OF   TITLE.  [  §  222 

in  relation  to  the  property  conveyed,  and  from  which  he  was 
"utterly  debarred  and  forever  excluded"  by  virtue  of  the  instru- 
ment.*® The  covenant  might  be  general,  but  was  usually  limited 
to  the  grantor  and  those  claiming  under  him.  As  now  framed  it 
is  a  limited  personal  covenant,  not  as  against  paramount  title,  but 
only  so  far  as  concerns  the  acts  of  the  grantor.  It  is  a  covenant  of 
warranty  to  the  extent  of  its  import,  and  differs  from  a  general 
warranty  only,  in  that  one  is  a  warrant}"  against  any  and  all  para- 
mount titles,  while  the  other  is  against  the  grantor  himself,  and 
all  persons  claiming  by,  through  or  under  him.*''  "As  a  general 
rule,"  says  Rawle,**  "no  distinction  has  in  any  way  been  taken 
between  such  a  covenant,  and  the  ordinary  covenant  of  warranty. 
Both  are.  in  general,  held  to  have  the  same  operation  by  way  of 
estoppel ;  both  equally  possess  the  capacity  of  running  with  the 
land,  and  confer  the  same  rights  as  to  a  recovery  in  damages."** 
Such  a  deed,  however,  cannot  be  extended  to  include  a  general 
covenant  of  warranty,  and,  as  it  contains  no  general  covenants  to 
secure  the  title,  an  aggrieved  party  can  have  no  remedy  under  it 
on  the  ground  of  a  mere  failure  of  title,  provided  there  has  been 
no  fraud  in  the  transaction.^"*  The  deed  is  shown  in  the  abstract 
the  same  as  a  warranty  deed,  except  that  it  is  called  a  "special 
warranty."  The  operative  words  of  grant,  if  material,  i.  e.,  if 
implying  covenants,  should  be  set  out  and  the  express  covenants 
may  be  noticed  as  follows: 

Grantor  covenants  against  his  own  acts,  and  those  claiming  hy, 
through  or  under  Mm  only. 

The  legal  effect  of  the  deed  as  a  conveyance  is,  of  course,  equal 
to  a  deed  of  bargain  and  sale  in  any  other  form.  Its  defects  as  a 
conveyance  must  be  noted,  as  in  other  cases,  and  the  remarks  and 
suggestions  heretofore  made  relative  to  deeds  generally  will  apply 
to  these  and  all  other  classes,  but,  to  avoid  prolixity,  will  not  be 
further  alluded  to  when  speaking  of  each  particular  kind. 

46  See  Eawle  on  Gov.  for  Title,  p.  text:    Kimhall  v.   Blaisdell,   5  N.   H. 

223,  3d  Ed.  533;    Gibbs   v.    Thayer,   6    Gush.    33; 

47Holbrook  v.  Debo,  99  111.  372;  Claunch  v.  Allen,  12  Ala.  163;  Ben- 
Porter  V.  Sullivan,  7  Gray,  441 ;  Lath-  nett  v.  Waller,  23  111.  97 ;  Holbrook 
rop  V.  Snell,  11  Gush.  453.  v.  Debo,  99  111.  372. 

48Eawle  on  Gov.  for  Title,  p.  223,  SOBnckner  v.  Street,  15  Fed.  Rep. 

3d  Ed.  365. 

49  The   following   cases   sustain   the 


§  224]  CONVEYANCES   BY   INDIVIDUALS.  241 

§223.  Statutory  Forms.  While  the  constant  tendency  of 
courts  and  conveyancers  has  been  to  modify  and  reduce  the  common 
law  forms  of  expression  in  conveyances  of  land,  the  radical  hand 
of  the  legislator  has  further  been  felt  of  late  years  in  the  changes 
wrought  in  the  form,  contents  and  effect  of  deeds  and  kindred 
instruments.  Statutory  forms  are  now  prescribed,  as  brief  and 
curt  as  those  they  are  intended  to  supplant  were  often  long  and 
verbose.  The  wisdom  of  these  forms  has  often  been  doubted, 
while  their  poverty  of  language  has  not  endeared  them  to  the  con- 
veyancer, and  as  the  statute  has  left  their  use  optional  they  have 
not  as  yet,  in  some  localities,  come  into  very  general  use. 

The  operative  words  of  statutory  deeds  purporting  to  convey 
the  fee,  are  "convey  and  warrant,"  which  words  have  also  the 
effect  of  express  covenants  of  seizin,  good  right  to  convey,  free- 
dom from  incumbrances,  peaceable  possession  and  warranty  of 
title.  Deeds  made  in  conformity  to  statute  have  all  the  force  and 
effect  of  covenants  that  are  usually  contained  in  the  common  law 
deeds.  All  the  covenants  mentioned  in  the  statute  are  to  be  re- 
garded and  treated  as  though  they  were  incorporated  in  the  deed, 
of  which  they  constitute  a  part  as  effectually  as  if  they  were 
written  therein.®^  The  operative  words  of  conveyances  of  naked 
interests  are,  "convey  and  quitclaim."  The  operative  words,  in 
either  case,  should  always  be  given  in  the  abstract,  which,  in 
other  respects,  will  not  differ  from  the  ordinary  forms  of  abridg- 
ments already  shown. 

§  224.  Common  Law  Conveyances.  In  addition  to  the  deed  of 
bargain  and  sale,  which  in  its  three-fold  form  of  "warranty," 
"quitclaim"  and  "non-claim"  has  been  made  a  statutory  convey- 
ance in  many  of  the  States,  there  are  a  number  of  technical  forms 
of  conveyance  derived  from  the  land  and  conveyancing  system 
of  Great  Britain  and  which  are  popularly  known  as  "common  law 
deeds."  They  consist  primarily  of  the  deeds  of  Release,  Con- 
firmation,  Surrender   and   Assignment.^^     These   deeds,   as   origi- 

Bl  Carver  v.  Louthain,  38  Ind.  530;  sanee;    and   five   conveyances   derived 

Kent  V.  Can  trail,  44  Ind.  452;  Lehn-  from  the  statute  of  uses,  to  wit:  Cov- 

dorf  v.  Cope,  122  111.  317.  enant  to  stand  seized  to  uses;  bargain 

82  The   elementary   writers    classify  and  sale ;   lease  and  release ;   deed  to 

common  law  deeds  as  follows:     Five  lead  or  declare  the  uses  of  other  more 

original  conveyances,  to  wit:     Feoff-  direct  conveyances;  and  deeds  of  rev- 

ment,    Gift,    Eent,    Lease,    Exchange  ocation  of  uses:     Willard,  Conveyanc- 

and  Partition;  five  derivative  convey-  ing,     419;      3     Wash.     Keal     Prop., 

ances,  to  wit:    Eelease,  Confirmation,  Chap.  5. 
Surrender,    Assignment    and    Defea- 
Warvelle  Abstracts — 16 


242  ABSTRACTS   OF   TITLE.  [§  224 

Jially  employed,  \vrro  all  higrlily  technical,  long,  and  verbose.  They  * 
displayed  to  fine  advantage  those  extremely  complex  but  finely 
rounded  sentences  that  so  delighted  the  heart  of  the  conveyancer 
of  the  eighteenth  century  and  furnished  so  much  food  for  dis- 
(|uisition  and  disputation  in  construing  estates  under  the  compli- 
cated English  land  tenures.  In  the  United  States  they  have  lost 
somewhat  of  their  redundancy,  though  there  are  not  wanting  to-day 
many  forms  needlessly  long  and  uselessly  prolix,  while  the  differ- 
ence in  our  land  s.ystem,  and  estates  thereunder,  has  robbed  them 
of  much  of  their  original  significance.  There  now  exist  but  few 
estates  that  can  not  be  adequately  conveyed  by  deed  of  bargain 
and  sale,  and  in  a  majority  of  instances  a  "quitclaim"  deed  Avill 
accomplish  all  that  was  formerlj'-  sought  through  the  media  of  the 
deeds  above  enumerated. 

§225.  Release.  The  term  "release,"  in  its  popular  and  limited 
signification,  is  now  used  to  denote  the  instrument  whereby  the 
interest  conveyed  by  a  mortgage  is  reconveyed  to  the  owner  of 
the  fee,  and  it  is  also  used  generally  to  designate  the  conveyance 
of  a  right  of  any  kind  to  a  person  in  possession.  In  England,  it 
obtains  in  a  four-fold  form,  and  is  one  of  the  most  important  of 
the  common  law  forms  of  conveyance.^^  In  the  United  States,  the 
technical  principles  relating  to  deeds  of  this  character  are  wholly, 
or  in  a  great  measure,  inapplicable,  while  the  conveyance  which 
corresponds  to  a  release  at  common  law,  is  the  popular  quitclaim 
deed,  the  operative  words  being  the  same  in  both  deeds.  If  a  release 
is  used  it  is  generally  regarded  as  a  substantive  mode  of  con- 


veyance 


64 


Where  a  deed  remising  and  releasing  lands  contains  a  cove- 
nant of  warranty  of  title,  either  general,  or  simply  as  against 
the  claims  of  all  persons  claiming  under  the  grantor  only,  and  par- 
ticularly if  the  habendum  be  to  the  grantee,  his  heirs,  etc.,  it  will 
not  be  a  simple  release,  but  a  conveyance  of  the  fee,  and  a  title 
subsequently  acquired  by  the  grantor  will  inure  the  grantee,  unless 

B8  Under  the  English  system  of  con-  the  les.see  or  'bargainee  in  possession, 

veyaneing,     releases     are     extensively  and    being    thus    in    possession,    al- 

employed   as  methods    of   conveyance  though  by  a  mere  fiction,  the  release 

of   estates  in   fee.     But  in   order  to  operating  by  -way  of  enlargement  of 

give  effect  to  a  deed  of  release,  it  is  the  estate,  is  effectual  to  transfer  the 

first  necessary  to  execute  a  lease  (or  entire  title. 

bargain  and  sale  for  a  year)   which  64  Hall 's  Lessee  v.  Ashby,  9  Ohio, 

by  force  of  the  statute  of  uses  puts  96. 


§  227]  CONVEYANCES  BY  INDIVIDUALS.  243 

it  is  derived  from  a  sale  under  an  incumbrance  assumed  by  the 
grantee.^^ 

§  226.  Confirmation.  The  subject  of  confirmation  has  been 
several  times  alluded  to  in  the  course  of  this  work,  but  mainly 
in  treating  of  confirmations  by  the  government  of  previously  exist- 
ing but  inchoate  rights  to  what  would  otherwise  be  public  land. 
Deeds  of  confirmation  are  also  in  use  among  individuals,  and  is 
that  species  of  conveyance  whereby  an  existing  right  or  voidable 
estate  is  made  sure  and  unavoidable,  or  where  a  particular  interest 
is  increased.  The  appropriate  technical  words  of  confirmation  are 
"ratify,  approve  and  confirm,"  but  "grant  and  convey"  or  similar 
terms  will  have  the  same  effect. 

Deeds  of  confirmation  are  not  in  general  use,  as  a  "quitclaim" 
is  effective  for  almost  every  purpose  which  might  be  accomplished 
by  the  former.  Frequently,  however,  recitals  in  deeds  show  that 
they  were  given  in  ratification  or  confirmation  of  previous  acts  or 
to  correct  errors,  irregularities  or  infirmities  in  former  deeds,  in 
which  event  they  take  effect  by  relation  as  of  the  date  of  the 
former  act  or  deed,  and  the  confirmatory  words  become  material 
to  interpret  and  explain  the  undisclosed  intention  or  correct  the 
irregularity  of  the  former  deed.  In  such  case  the  abstract  should 
briefly  set  out  the  confirmatory  particulars,  as: 

This  deed  is  given,  it  is  stated,  to  correct  an  error  in  a  former 
deed  from  the  same  parties,  dated  June  10,  1900,  wherein  the  land 
conveyed  was  erroneously  described  as  being  located  in  Section  Ten. 

§  227.  Surrender.  A  surrender  is  defined  as  the  yielding  up  of 
an  estate  for  life  or  years  to  him  who  has  an  immediate  estate  in 
reversion  or  remainder,  the  lesser  estate  being  merged  in  the 
greater  by  mutual  agreement,^^  and  the  term  is  applied  both  to 
the  act  and  the  instrument  by  which  it  is  accomplished.  It  is 
directly  opposite  in  its  nature  to  release,  which  technically  operates 
by  the  greater  estate  descending  upon  the  lesser.  The  operative 
words  of  a  conveyance  of  this  nature,  are  "surrender  and  yield 
up,"  but  any  form  of  words  that  indicates  the  intention  of  the 
parties  will  serve  the  same  purpose,  while  a  surrender  is  always 
implied  when  an  estate  incompatible  with  the  existing  estate  is 
accepted. 

56  People  ex  rel.  Weber  v.  Herbal,  66  2  Bou.  Law  Diet.  573;  Coke  Litt. 

96  111.   384.  337b. 


244  ABSTRACTS   OF   TITLE.  [§  227 

Though  books  on  cuiiveyaiiciiig  sUll  eoutinno  to  jjive  cunple  t'orius 
for  deecls  of  surrender,  the  quitclaim  deed  in  eomnion  use  Jias 
taken  its  place  for  most  purposes,  but  it  would  seem  that  this  is 
still  the  proper  instrument  for  the  relinquishment  of  leasehold 
interests,  dower,  etc.  In  deeds  of  surrender  the  special  matter  of 
inducement  usually  precedes  the  operative  part  of  the  deed ;  as 
in  case  of  leasehold,  a  recital  of  the  lease,  etc.,  and  an  abridgment 
of  this  matter  should  appear  in  the  abstract.  This,  and  the  sur- 
render clause,  constitute  the  essential  distinctive  features.  An 
example  is  given  of  a  surrender  of  a  life  estate : 


William  E.  Channing 
to 

Thomas  L.  Channing 
only  son  and  heir  apparent  of 
said   William  E.   Channing. 


Surrender, 
Dated,  etc.. 


Recites  that  [here  set  out  brief- 
ly the  matter  of  inducement, 
"'  which  would  be,  in  this  case,  the 
instrument  conve^'ing  the  life  estate  to  the  father  and  the  re- 
mainder to  the  son].  Now  this  Indenture  witnesseth  (it  is  stated) 
that  said  first  party  in  consideration  of  $1.00  granits,  surrC'nders 
and  yields  up  to  second  party  all  those  certain  lands  and  tene- 
ments [describing  same]  and  the  estate  for  life,  or  life  interest  of 
said  first  party,  in  and  to  said  premises  mentioned  to  he  hereby 
granted  and  surrendered,  to  the  intent  that  same  may  merge  and 
become  absolutely  extinguished,  so  that  said  second  party  may  be 
in  the  actual  possession  of  said  premises. 
[Note  covenants  if  any.] 
Acknowledgment. 

A  better  idea  of  the  abridgments  of  deeds,  and  other  instru- 
ments presented  in  this  work,  would  be  obtained  if  it  were  prac- 
ticable to  insert  the  original  instruments  in  connection  therewith. 
As  it  is,  the  reader  is  requested  to  compare  same  with  the  forms 
presented  in  any  approved  form  book  and  to  note  where  language 
can  be  eliminated  without  impairing  the  force  of  the  instrument, 
and  where  condensation  and  abbreviation  can  be  advantageously 
employed.  A  deed,  of  the  character  just  considered  is,  when 
drawn  after  the  regulation  pattern,  very  long  and  technical.  Con- 
densation in  such  cases  is  an  imperative  necessity,  while  the  spirit 
of  the  original  must  be  preserved. 

§  228.  Assignment.  An  assignment  is  a  mode  of  conveyance 
applicable  to  any  estate  in  lands  whatever;  but  the  term  is  usually 


§  229]  CONVEYANCES    BY    INDIVIDUALS.  245 

employed  to  express  the  transfer  of  an  equitable  estate  or  a  lease- 
hold interest,  and  as  such  will  receive  attention  in  another  part 
of  the  work.  The  operative  words  of  conveyance  are  "assign, 
transfer  and  set  over,"  but  any  other  words  evincing  an  intention 
to  make  an  entire  transfer  will  be  sufficient.^''' 

An  assignment  by  endorsement  on  a  deed  is  entirely  nugatory. 
Such  a  proceeding  might,  perhaps,  vest  in  the  assignee  a  right  to 
the  paper  itself,  but  would  not  affect  the  title  to  the  land.  At 
best,  it  might,  in  equity,  be  considered  as  an  executory  contract, 
on  proof  of  the  facts  connected  with  it,  and  as  such  entitle  the 
assignee  to  a  decree  for  specific  performance,  but  it  would  not 
operate  as  a  conveyance  of  the  legal  title.^* 

§  229.  Conveyances  in  Future.  At  common  law  an  attempt  to 
create  or  convey  a  freehold  or  estate  of  inheritance  in  futuro  was 
a  nullity,  the  nearest  approach  being  a  covenant  to  stand  seized 
to  uses,  and  this  was  only  permissible  when  the  consideration  was 
blood  or  marriage,^^  nor  was  it  until  comparatively  recent  years 
that  such  conveyances  have  been  recognized  in  the  United  States, 
unless  the  estate  had  first  been  filtered  through  the  medium  of  a 
trustee.  This  resulted  from  the  principle  of  the  old  feudal  law, 
that  there  must  always  be  a  known  owner  of  every  freehold  estate, 
and  that  the  title  thereto  should  never  be  in  abeyance.  It  fol- 
lowed, therefore,  that  a  freehold  to  commence  in  the  future  could 
not  be  conveyed,  for  the  reason  that  it  would  be  in  abeyance 
from  the  time  of  the  conveyance  until  the  future  estate  of  the 
grantee  should  vest.  Under  the  statute,  however,  a  freehold  estate 
in  most,  if  not  all  of  the  States,  may  be  created  to  commence  in 
the  future.  The  effect  of  such  legislation  has  been  to  abrogate 
the  common  law,  and  the  rule  now  seems  to  be  well  established 
that  if  a  deed  conveys  a  vested  right  to  either  a  present  or  future 
enjoyment  of  the  premises  it  is  valid.^*' 

Conveyances  of  this  kind  will  usually  be  found  to  take  the  form 
of  a  common  deed  of  bargain  and  sale,  with  a  proviso  restraining 
the  grantee  from  using  or  occupying  the  granted  premises  during 

67  2  Hill  Abridg.  318;  4  Cruise  McKenny,  3.  Wend.  233;  Brewster  v. 
Dig.   81.  Hardy,  22  Pick.  (Mass.)  380;  Spauld- 

68  Lessee  of  Bently  v.  Deforest,  2      ing  v.  Gregg,  4  Ga.  81. 

Ohio,  221;  Linker  v.  Long,  64  N.  0.  60  Mattocks  v.  Brown,  103  Pa.  St. 

296.     But   see,   Harlowe   v.   Hudgins,  16;    Morley   v.    Daniel,   90    Ga.    650; 

84  Tex.  107,  where  a  contrary  rule  is  Shaekolton    v.    Scbree,    86    111.    616; 

announced.  Wilson  v.  Carrico,  140  Ind.  533. 

69  2   Black.   Com.   338;    Jackson  v. 


246  ABSTRACTS   OF   TITLE.  [§  229 

the  life  of  the  grautor,*^^  or  detining  the  time  at  which  the  deed 
shall  become  effective,  though  in  this  respect  they  are  variant, 
occasionally  partaking  of  the  nature  of  a  contingent  remainder. 
If  otherwise  sufficient  a  deed  of  land  to  take  effect  at  a  future  time 
will  vest  the  fee  in  the  grantee  according  to  its  terms.^^ 

In  the  abstract  there  should  be  shown :  the  words  of  grant,  and 
if  material  the  words  of  limitation,  as  tending  to  indicate  more 
fully  the  nature  of  the  granted  estate;  the  proviso  limiting  or 
restricting  the  use  of  the  estate  or  explaining  its  scope;  the 
habendum,  with  only  slight  abridgment,  this  being  one  of  the  few 
cases  in  which  it  becomes  material  and  important;  and  the  cove- 
nants, or  such  of  them  as  may  appear  material.  A  deed  of  this 
character,  taken  from  the  hies,  will  serve  more  fully  to  illustrate 
the  matter.  A  grantor  seeks  to  convey  the  fee,  to  vest  only  in 
the  event  of  his  death  before  that  of  the  grantee,  as  extreme  a 
case  as  can  be  well  imagined.  Omitting  the  preliminary  parts, 
which  would  be  in  the  form  already  shown,  except  that  the  con- 
sideration and  conveying  clauses  are  set  forth  more  fully,  the 
abstract  after  the  description  would  read: 

Provided  (it  is  stated)  "that  this  deed  is  not  to  take  effect  and 
operate  as  a  conveyance  until  my  decease,  and  in  case  I  shall  sur- 
vive my  said  wife,  this  deed  is  not  to  he  operative  as  a  conveyance, 
it  being  the  sole  purpose  and  object  of  this  deed  to  make  a  pro- 
vision for  the  support  of  my  said  wife  if  she  shall  survive  me,  and 
if  she  shall  survive  me,  then  and  in  that  event  only,  this  deed  shall 
be  operative  to  convey  to  my  said  wife  said  premises  in  fee  simple^ 
Neither  I,  the  grantor,  nor  Clarissa  B.  Abbott,  shall  convey  the 
above  premises  while  we  both  live,  without  our  mutual  consent. 
If  I,  the  grantor,  shall  abandon  or  desert  my  said  wife,  then  she 
shall  have  the  sole  use  and  income  and  control  of  said  premises 
during  her  life." 

To  have  and  to  hold,  etc.,  "to  the  said  Clarissa  B.,  if  she  shall 
survive  me,  her  heirs  and  assigns,  to  their  use  and  behoof  forever." 

Said  grantor  covenants  "that  I  have  good  right  to  sell  and 
convey  the  same  to  the  said  Clarissa  B.,  if  she  shall  survive  me, 
to  hold  as  aforesaid  at  my  decease,"  and  that  he,  his  heirs,  etc., 

61  See  Chandler  v.  Chandler,  55  Cal.  62  Furgiisen  v.  Mason,  60  Wis.  377; 

267;    Abbott  v.    Holway,   Adm'r,    72  McDaniel    v.    Johns,    45    Miss.    632; 

Met.    298;    Shackleton   v.    Sebree,    86  Mitchell  v.  Mitchell,  108  N.  C.  542; 

111.   616;   Kent  v.  Atlantic,  De  Laine  Owen    v.     Williams,     114    Ind.     179; 

Co.,  8  E.  I.  305;  Bohon  v.  Bohon,  78  White   v.   Hopkins,   80   Ga.   154. 
Ky.  408. 


§  229  J  CONVEYANCES   BY   INDIVIDUALS.  247 

wUl  warrant  and  defend  the  same  ''to  said  Clarissa  B.  if  she  shall 
survive  me." 

The  foregoing  deed  was  construed  and  declared  a  valid  convey- 
ance in  futuro,  sufficient  to  vest  the  fee  in  the  grantee  on  the 
happening  of  the  contingency  mentioned.^^  It  is  doubtful,  how- 
ever, whether  such  an  instrument  would  be  given  effect  as  a  deed 
in  a  number  of  States.^*  Indeed,  a  most  perplexing  question  is 
presented  where  a  deed  is  drawn  with  a  proviso  that  it  is  not  to 
become  operative  until  the  death  of  the  grantor.  With  respect 
to  deeds  of  this  character  the  authorities  seem  to  be  in  irrecon- 
cilable conflict.  In  many  of  the  cases  it  has  been  held,  that  where 
a  conveyance  is  made  in  words  of  present  grant,  although  it  pro- 
vides that  the  deed  is  not  to  take  effect  until  the  death  of  the 
grantor,  it  will  yet  be  a  valid  conveyance  of  an  estate  vesting  at 
the  time  of  delivery  of  the  deed  but  taking  effect  in  possession  at 
the  grantor's  death.®^ 

On  the  other  hand,  in  numerous  cases,  where  practically  the 
same  formula  was  employed  in  the  deed  of  conveyance,  the  courts 
have  held  that  no  present  interest  passed  by  the  grant,^^  and 
that  a  deed  not  to  take  effect  until  the  death  of  the  grantor  is 
void,  as  being  an  attempt  to  make  a  testamentary  disposition  of 
land  without  complying  with  the  statute  of  wills.^''^ 

In  the  states  where  deeds  of  this  character  have  been  sustained 
the  courts  proceed  on  the  theory  that  an  instrument,  in  form  a 
deed  of  present  grant,  must  be  construed  as  an  entirety.  That 
some  force  must  be  given  to  all  parts  of  the  instrument  and  that 
such  construction  should  be  given  to  it  as  will  make  the  instru- 
ment effective,  rather  than  one  which  would  deny  it  any  opera- 
tion. Hence,  they  say,  the  provision  that  the  deed  is  not  to  become 
effective  until  the  death  of  the  grantor  may  be  construed  as  a 
clumsy  way  of  limiting  an  estate  in  remainder  to  commence  in 

63  See,   Abbott  v.   Holway,   Adm'r,  Ind.    533,    40    N.    E.    50;    West    v. 
72  Me.  298,  a  very  instructive  case;  Wright,  115  Ga.  277,  41  S.  E.  602. 
see,  also,  Brown  v.  Atwater,  25  Minn.  66  Pinkham    v.    Pinkham,    55    Neb. 
520.  729,  76  N.  W.  411;  Leaver  v.  Gauss, 

64  Consult,  Turner  v.  Scott,  51  Pa.  62  Iowa,  314,  17  N.  W.  522;  Murphy 
St.    126;    Eowlings  v.   McRoberts,   95  v.    Gabbert,    166   Mo.    596,    66   S.   W. 
Ky.  346;   Leaver  v.  Gauss,  62  Iowa,  536;   Turner  v.  Scott,  51  Pa.  126. 
314.  67  Wilson  v.  Wilson,  158  111.;   but, 

66  Abney  v.  Moore,  106  Ala.  131,  compare,  Shackelton  v.  Sebree,  86  111. 
18    So.    60;    Wilson    v.    Carrico,    140      616. 


248  ABSTRACTS   OP   TITLE.  [§  229 

possession   at    the   termination   of   a   life   estate   reserved   to  the 
grantor.^* 

But,  generally,  a  freehold  estate,  if  properly  limited,  may  be 
created  to  commence  in  the  future.  Under  the  statutes  now  in 
force  in  a  majority  of  the  States,  the  owner  of  land  may  convey 
in  the  manner  prescribed,  any  part  or  portion  of  his  estate  therein 
as  he  and  his  grantee  may  agree,  subject  only  to  those  restrictions 
which  the  law  imposes  as  required  by  public  policy,  but  relieved 
from  the  technical  doctrines  which  arose  out  of  ancient  feudal 
tenures,  and  all  the  restrictive  effect  which  they  had  upon  aliena- 
tions. "The  mere  technicalities  of  ancient  law,"  sa^'s  Barrows, 
J.,  "are  dispensed  with  upon  compliance  with  statute  require- 
ments. The  acknowledgment  and  recording  are  accepted  in  place 
of  lively  of  seizin,  and  it  is  competent  to  fix  such  time  in  the  future 
as  the  parties  may  agree  upon  as  the  time  when  the  estate  of  the 
grantee  shall  commence.  No  more  necessity  for  limiting  one 
estate  upon  another,  or  for  having  an  estate,  of  some  sort,  pass 
immediately  to  the  grantee  in  opposition  to  the  expressed  inten- 
tion of  the  parties.  The  feoffment  is  to  be  regarded  as  taking 
place,  and  the  livery  of  seizin  as  occurring,  at  the  time  fixed  in 
the  instrument,  and  the  acknowledgment  and  recording  are  to  be 
considered  as  giving  the  necessary  publicity  which  Avas  sought  in 
the  ancient  ceremony.  "^^ 

§  230.  Conveyances  of  Special  Interests  and  Qualified  Estates. 
The  terms  "warranty"  and  "quitclaim"  are  used  in  preparing 
the  synopsis  of  deeds,  only  when  the  instruments  to  which  they 
are  applied  purport  to  be  absolute  conveyances  of  the  entire 
interest  of  the  grantor.  In  the  former  instance,  when  containing 
covenants  which  run  with  the  land :  in  the  latter,  when  conveying 
but  a  naked  interest,  uncoupled  with  covenants  or  conditions.  In 
both  of  these  cases  the  legal  import  may  safely  be  determined  by 
the  examiner,  w-ho  may  indicate  same  by  the  name  he  applies  to 
the  conveyance ;  in  all  other  cases  he  should  simply  use  the  generic 
word  "deed,"  or,  if  this  word  does  not  seem  to  apply,  the  word 
"instrument,"  and  setting  out  the  material  and  operative  parts 
of  the  instrument  should  leave  the  question  of  their  legal  import 
and  effect  to  counsel. 

This  class  of  conveyances  comprises  deeds  of  equitable  interests, 
contingent  and  vested  remainders,  reversions,  all  conveyances  not 

68  See,   Hunt  v.    Hunt,    26   Ky.    L.  69  Abbott    v.    Holway,    Adm'r,   72 

Rep.  973,  82  S.  W.  998,  68  L.  R.  A.       Me.  298;    Kent  v.   Atlantic,  DeLaine 
180.  Co.,  8  R.  I.  305. 


^  230]  CONVEYANCES  BY  INDIVIDUALS.  249 

in  presenti,  and  may  include  estates  for  life  or  years,  as  well  as 
incorporeal  hereditaments,'''®  easements  and  the  like.  Greater  par- 
ticularity is  required  in  their  treatment  than  in  the  other  classes 
of  conveyances  heretofore  mentioned,  as  their  validity  and  effect 
do  not  depend  so  much  on  general  principles,  as  in  case  of  war- 
ranties and  quitclaims,  as  upon  the  application  of  special  pro- 
visions of  law  to  particular  facts.  The  operative  words  of  convey- 
ance, and  frequently  those  of  purchase  or  limitation,  become  ma- 
terial in  determining  the  nature  and  extent  of  the  estate  granted, 
while  the  habendum,  or  some  portion  thereof,  must  also  be  resorted 
to  to  explain  or  further  define  the  grant  made  in  the  premises. 
The  conditions  annexed  to  the  grant,  or  restraints  upon  the  use 
or  enjoyment  of  the  land  must  further  be  observed,  and  where 
covenants  are  inserted  in  a  deed  of  this  kind  it  is  well  to  allude 
to  them. 

It  is  a  general!}'  recognized  principle,  that  where  the  granting 
clause  does  not  define  the  nature  of  the  estate  conveyed,  and  is 
not  followed  by  language  assuming  to  supply  what  is  thus  omitted, 
the  estate  conveyed  is  a  fee,  or  whatever  interest  the  grantor  pos- 
sessed at  the  time,  and  this  is  the  general  statutory  doctrine;  but 
where  the  habendum  describes  what  estate  passes  it  becomes 
efficient  to  declare  the  intention,  and  will  rebut  any  implication 
which  would  otherwise  arise  from  the  omissions  of  the  premises. 
The  habendum,  in  such  case,  does  not  contravene  the  rule  that 
nothing  can  be  limited  thereby,  nor  does  it  contradict  the  language 
of  the  granting  clause,  but  simply  supplies  what  is  there  omitted, 
and  removes  all  necessity  for  resorting  to  implication  to  ascertain 
the  intention  of  the  parties.'''^  Neither  can  the  covenants  enlarge 
the  grant,  whatever  be  their  tenor, '''^  yet  they,  like  the  habendum, 
may  serve  to  more  fully  explain  the  intention  of  the  parties, 
as  will  be  seen  from  some  of  the  examples  given  in  this  chapter, 
and  courts  are  ever  more  inclined  to  look  to  the  whole  instrument 
for  a  proper  construction,  than  to  isolated  and  detached  portions 
as  formerly .''^^ 

70  A    grantee   may    take    a   fee   in  0.  &  M.  Railway  Co.,  94  111.  83.  This, 

any  kind  of  hereditament,  either  cor-  however,  is  one  of  the  abstractions  of 

poreal   or    incorporeal;    but    there    is  the  mediseval  lawyers  and  the  distino- 

this  distinction  between  the  two  spe-  tion  may  not  be  recognized  in  many 

cies;    that    a    man    is    seized    in    his  States. 

demesne  as  of  a  fee  of  a  corporeal  71  Riggin   v.   Love,   72  111.   553. 

hereditament,  whUe  of  an  incorporeal  72  Lamb    v.    Wakefield,    1    Sawyer 

hereditament  he  can  only  be  said  to  (C.  Ct.),  251. 

be  seized  as  of  fee,  and  not  in  his  73  Saunders    v.    Hanes,    44    N.    Y. 

demesne,  which  means  property  in  the  353;  Callins  v.  Lavelle,  44  Vt.  230. 
thing  itself:     Wiggins  Ferry   Co.   v. 


250  ABSTRACTS   OF   TITLE.  [§  231 

§  231.  Continued — Illustrations  of  Special  Cases.  It  is  impos- 
sible to  jjive  more  tliau  a  reference  to  the  large  class  of  convey- 
ances that  come  within  the  scope  of  this  section,  but  it  is  believed 
that  the  examiner  will  readily  recognize  such  when  met  with  in 
actual  practice. 

A  common  occurrence  in  deeds  and  wills  will  be  found  in  the 
efforts  to  secure  to  married  women  and  their  children  the  use  and 
ownership  of  land  freed  from  the  dominion  and  control  of  the  hus- 
band and  father,  and  such  conveyances  give  rise  to  many  subtle 
questions  in  their  construction.  A  conveyance  of  land  directly 
to  a  woman  and  her  children,  without  other  words,  she  then  having 
children,  would  vest  the  title  in  her  and  her  children  equally,'* 
and  it  seems  no  title  will  vest  at  law  in  children  thereafter  boru,''^ 
although  the  instrument  may  declare  the  grantor's  intent  that 
the  after-born  children  shall  take.'''^  But  such  children  would  take 
as  beneficiaries  under  a  trust  by  deed,''''  or  will,'*  and  perhaps 
the  living  grantees  under  such  a  deed  expressly  providing  for 
after-born  children  would  hold  the  legal  title  interest  for  them- 
selves and  such  children.'^ 

A  very  slight  indication  of  an  intention  that  the  children  shall 
not  take  jointly  with  the  mother  will  suffice  to  give  the  estate 
to  the  mother  for  life,  with  remainder  to  the  children,  as  well  in 
the  case  of  a  deed  ^^  as  of  a  will  *^  and  even  though  the  woman 
should  have  no  children  then  living,  or  if  she  were  unmarried, 
there  would  yet  be  such  a  contingent  remainder  in  favor  of  any 
children  she  might  have,  that  she  would  have  no  power  by  a  con- 
veyance before  issue  to  defeat  this  contingent  remainder  in  favor 
of  such  issue.®'^  There  are  cases  which  hold  that  a  conveyance  to 
a  woman  and  her  children  will  vest  in  the  woman  no  more  than 
an  estate  for  life  with  remainder  in  fee  to  the  children  as  a  class, 
so  that  those  in  being  at  the  date  of  the  deed  as  well  as  those 
subsequently  born  would  be  entitled  to  take  in  the  distribution 

74  Hickman  v.  Quinn,  6  Yerg.  78  Turner  v.  Ivie,  5  Heisk.  (Tenn.) 
(Tenn.)    96;    Loyless    v.    Blackshcar,      222. 

43    Ga.    327;    Barber    v.    Harris,    15  79  Holmes  v.  Jarret  Moon,  7  Heisk. 

Wend.    (N.  Y.)    615.  (Tenn.)    506;    Jackson    v.    Sisson,    2 

75  Falcon  v.  Simshauser,  130  111.  Johns.  Cas.  321;  Schumpert  v.  Dil- 
649.  lard,  55  Miss.  438. 

76  Lillard  v.  Euekers,  9  Yerg.  80  Moore  v.  Simmons,  2  Head 
(Tenn.)   64;   Newsom  v.  Thompson,  2  (Tenn.),  506. 

Ired.  (N.  C.)  277;  but  see,  Barber  v.  81  Bunch  v.  Hardy,  3  Lea  (Tenn.), 

Harris,  15  Wend  (N.  Y.)   615.  543. 

77  Gray  v.  Hayes,  7  Humph.  82  Frazer  v.  Sup.  of  Peoria,  74  111. 
(Tenn.)    588.  282. 


§  231]  CONVEYANCES   BY   INDIVIDUALS.  251 

on  the  termination  of  the  life  estate.**  It  is  also  a  well  established 
rule  that  a  conveyance  to  a  woman  and  the  heirs  of  her  body  will 
pass  only  a  life  estate  to  the  woman  herself,  her  children,  whether 
born  before  or  after  execution,  taking  a  vested  estate  in  the 
remainder.**  In  like  manner,  a  deed  to  a  woman  and  her  issue 
by  a  specified  husband,  will  give  to  her  only  a  life  estate  with  the 
remainder  to  her  children  begotten  by  such  specified  husband.*^ 
If  the  conveyance  be  expressly  to  the  mother  for  life,  and  after 
her  death  to  her  children,  the  children  born  during  the  life  estate 
would  take,  the  remainder  vesting  as  they  came  into  being,  and 
opening  to  let  in  those  born  afterward.*^ 

In  all  of  these  cases,  aside  from  the  fine  points  of  construction 
to  decide  the  ownership  of  the  fee,  collateral  questions  arising 
from  the  doctrine  of  dower  and  curtesy  present  themselves  accord- 
ing as  to  the  statutory  law  of  the  State  may  be;  the  collateral 
questions  being  dependent  on  the  construction  of  the  main  ques- 
tion of  the  nature  and  quality  of  the  estate  conveyed.  The  inten- 
tion of  the  grantor  being  gathered  from  the  whole  instrument, 
it  is  recommended  that  all  technical  words  of  conveyance,  limita- 
tion and  definition,  whether  in  premises,  habendum  or  covenants, 
be  set  out  fully  and  without  reserve,  and  repugnancies  or  varia- 
tions noted  as  heretofore  shown.  In  the  instances  above  cited,  and 
generally  when  the  instrument  purports  to  convey  more  than  one 
estate,  or  where  the  estate  conveyed  is  defeasible  from  any  cause, 
the  premises  and  habendum  must  be  construed  together  and  should 
be  properly  presented  for  that  purpose;  as,  in  a  case  where  land 
is  conveyed  to  A,  to  hold  until  his  son  B  shall  become  of  age,  and 
then  to  B  in  fee;  or  if  B  shall  die  before  that  event,  then  to  A 
in  fee.  In  such  a  case  the  premises  and  habendum  and  all  opera- 
tive words  become  material  and  must  be  shown,  thus: 

Grants,  hargcdns,  sells  and  conveys  to  A,  and  his  son  B,  the 
following  described  land,  etc. 

To  have  and  to  hold  *  *  *  unto  said  A,  for  and  during  the 
minority  of  his  son  B,  and  until  said  B  shall  arrive  at  the  age  of 
twenty-one  years;  and  unto  said  B,  his  heirs,  etc.,  *  *  *  in 
case  he  shall  arrive  at  the  full  age  of  twenty-one  years;  hut  in  case 
the  sadd  B  shall  decease  hefore  he  arrives  at  the  age  of  twenty-one 
years,  then  unto  said  A,  his  heirs,  etc. 

(Note  covenants  if  material.) 

saCoursey  v.  Davis,  46  Pa.  St.  25;  85  Bodine  v.  Arthur,  91  Ky.  53. 

Hague  V.  Hague,  161  Pa.  St.  643.  86Beecher  v.  Hicks,  7  Lea  (Tenn.), 

M  Fletcher  v.  Tyler,  92  Ky.  145.  207;  Blair  v.  Vanblarcum,  71  111.  290. 


252  ABSTRACTS   OP   TITLE.  [§  232 

As  a  jroncral  i-ule,  contingent  interests  are  assignable,  devisable 
and  descendible  the  same  as  the  vested  interests.*"' 

§  232.  Restrictive  and  Conditional  Conveyances.  The  subject 
of  conditions  and  restrictive  clauses  in  deeds  and  other  forms  of 
conveyance  has  already  been  alluded  to,  and  need  not  be  exten- 
sively discussed  here.  As  a  rule,  any  condition  which  is  repug- 
nant to  the  estate  granted  will  be  invalid,  but  it  has  been  held 
that  the  owner  of  property  has  a  right  to  dispose  of  it  with  a 
limited  restriction  on  its  use,  however  much  the  restriction  may 
effect  its  value  or  the  nature  of  the  estate  conveyed.  Repugnant 
conditions  are  those  which  tend  to  the  utter  subversion  of  an 
estate;  such  as  prohibit  entirely  the  alienation  or  use  of  the  prop- 
erty. Conditions  which  prohibit  its  alienation  to  particular  per- 
sons, or  for  a  limited  period,  or  which  provide  for  its  subjection 
to  particular  uses,  are  not  subversive  of  the  estate.  They  do  not 
destroy  or  limit  its  alienable  or  inheritable  character,  and  the 
reports  are  full  of  cases  where  conditions  imposing  restrictions 
upon  uses  to  w-hich  property  conveyed  in  fee  may  be  subjected, 
have  been  upheld.  In  this  way  slaughter  houses,  soap  factories, 
saloons,  distilleries,  livery  stables,  tanneries,  and  machine  shops 
have  in  a  multitude  of  instances,  been  excluded  from  particular 
localities,  which,  thus  freed  from  unpleasant  sights,  noxious  vapors, 
or  disturbing  noises,  have  become  desirable  as  places  for  residences 
of  families.**  That  such  a  purpose  is  a  legitimate  one,  and  may 
be  carried  out  consistently  with  the  rules  of  law,  by  reasonable 
and  proper  covenants,  conditions,  or  restrictions,  cannot  be 
doubted. 

In  abstracting  deeds  of  this  character,  the  attention  of  the 
examiner  should  be  particularly  directed  to  the  words  of  grant, 
the  habendum,  the  conditions  annexed  to  the  grant,  and  the 
covenants.  Conditions  restricting  the  use  of  the  premises  con- 
veyed are  usually  conditions  subsequent,  and  often  provide  for  a 
reversion  of  the  title  upon  their  breach,  and  upon  which  the 
grantor  may  recover  in  ejectment.*®  The  form  for  creating  a 
condition  in  a  grant  or  deed,  as  laid  down  by  the  elementaiy 
writers,  is  "provided  always,  and  this  deed  is  upon  the  express 

87Kenyon  v.  See,  94  N.  Y.  563.  Gray  v.  Blanchard,  8  Pick.  284;  Clark 

88Cowell  V.   Colorado   Springs  Co.,  v.  Martin,  94  Pa.  St.  289. 

100   TJ.   S.   55;    Plumb  v.    Tubbs,  41  89  Plumb  v.  Tubbs,  41  N.  Y.  442; 

N.  Y.  442;  Collins  v.  Marcy,  25  Conn.  Wakefield  v.  Van  Tassell,  202  111.  41; 

242;   Sperry  r.  Pound,  5  Ohio,  189;  Martin  v.  By.  Co.,  37  W.  Va.  349. 


§  233  J  CONVEYANCES   BY   INDIVIDUALS.  253 

condition, ' '  ^^  and  these  expressions  have  always  been  held  suffi- 
cient to  create  an  estate  upon  condition,  unless  there  is  something 
in  the  deed  to  negative  this  idea.  Inasmuch  as  estates  upon  con- 
dition working  forfeiture  are  odious,^^  courts  have  generally  laid 
hold  of  any  plausible  feature  to  sustain  them.  Such  conditions 
are  not  favored,  and  must  be  construed  strictly ,^2  and  will  under 
no  circumstances,  be  enforced  further  than  may  be  absolutely  re- 
quired, and  so  strong  is  this  principle  engrafted  in  the  law  that 
courts  of  equity  will  seldom  lend  their  aid  to  divest  an  estate  for 
breach  of  a  condition.®^ 

The  fact  that  an  estate  is  subject  to  condition  does  not  in  any 
way  affect  its  capacity  for  alienation,  or  of  being  devised,  or 
descending  in  the  same  manner  as  an  indefeasible  estate,  but  the 
purchaser,  devisee,  or  heir,  takes  its  subject  to  whatever  condi- 
tions may  be  annexed  to  it.®*  The  estate  so  granted  is  sometimes 
called  a  base  or  qualified  fee,  being  such  as  has  a  qualification 
subjoined  thereto,  and  which  must  be  determined  whenever  the 
qualification  annexed  to  it  is  at  an  end.  It  is  a  fee,  because  it 
may  possibly  endure  forever;  and  it  is  base  or  qualified,  because 
its  duration  depends  upon  collateral  circumstances  which  qualify 
and  debase  the  purity  of  the  donation.®^  But  these  terms  are  now 
rarely  employed,  the  ideas  they  represent  being  better  expressed 
by  what  is  called  a  conditional  limitation.  Indeed,  the  ideas  in- 
volved, as  well  as  the  terms  in  which  they  are  expressed,  are  sur- 
vivals of  the  middle  period  of  the  common  law,  and  in  modem 
legal  theories  have  practically  become  obsolete. 

§233.  Prohibited  Conveyances — Adverse  Seizin.  "From  an 
early  date,"  says  Washburn,  ''the  policy  of  the  law  has  not  ad- 
mitted of  the  conveyance,  by  any  one,  of  a  title  to  land  which 
is  in  the  adverse  seizin  and  possession  of  another.  This  is  con- 
sidered, not  as  passing  a  title,  but  as  the  transfer  of  a  right  of 
action  in  violation  of  the  early  laws  against  champerty  and  main- 

90 Kent's  Com.  122;   2  Wash.  Eeal  93 Warner    v.    Bennett,    31     Conn. 

Prop,  3.  478;    Ins.   Co.  v.  Walsh,   54  111.   164; 

91  Warner    v.    Bennett,    31     Conn.  Palmer   v.   Ford,   70   111.    369;    Wing 

478;    Palmer    v.    Ford,    70    lU.    369;  v.  Eailey,  14  Mich.  83;  Smith  v.  Jew- 

Craig  V.  Wells,  11  N.  Y.  315.  ett,  40  N.  H.  530. 

92Garberry   v.    Sheppard,   27  Miss.  94  Taylor   v.    Sutton,    15    Ga.    103; 

203;    Bradstreet    v.    Clark,    21    Pick.  Wilson  v.  Wilson,  38  Me.  18;  Under- 

389 ;  Hoyt  v.  Kimball,  49  N.  H.  327 ;  hill  v.  R.  R.  Co.,  20  Barb.  455. 

4    Kent     Com.     130;     Woodworth    v.  95  Wiggins   Ferry    Co.    v.    O.   &   M. 

Paine,  74  N.  Y.  196.  Ry-  Co.,  94  lU.  83. 


254  ABSTRACTS   OP   TiTLiE.  [§  233 

tenance,  and  therefore,  not  to  be  sustained  by  the  courts."** 
This  doctrine  was  long  maintained  in  this  country  and  still  pre- 
vails to  a  limited  extent  in  some  of  the  older  States,®''  but  in  the 
"West  it  has  been  swept  away  by  express  statutory  enactments, 
and  no  conveyance  is  void  because  at  the  time  of  its  execution  or 
delivery,  the  land  in  question  is  in  the  possession  of  another  who 
holds  by  a  title  adverse  to  that  of  the  grantor.®^  Where  such 
doctrine  still  prevails,  an  entry  on  the  land  and  delivery  there, 
will  evade  the  letter  of  the  law  and  make  good  the  deed.*®  The 
abstract  will  show  both  titles,  provided  they  are  each  deducible 
of  record,  and  questions  of  this  kind  must  be  decided  by  the  appli- 
cation of  local  law  to  the  admitted  or  known  circumstances.  At 
most,  the  principle  will  apply  only  as  to  the  person  holding  the 
adverse  title  at  the  time  of  the  execution  and  delivery  of  the  deed, 
or  those  claiming  hy,  through  or  under  him,  and  as  to  all  others 
the  deed  would  be  valid  and  effectual.^ 

§234.  Continued — Fraudulent  Conveyances.  What  are  known 
as  "fraudulent  conversances,"  or  such  as  are  made  with  intent  to 
hinder  and  delay  creditors,  though  formal  in  all  respects,  and 
valid  and  effectual  between  the  parties,  are  prohibited  by  law  and 
void  to  a  certain  extent.'^  Depending  largely  upon  intent,  the 
record  will  furnish  few  clues  to  the  real  character  of  such  a  deed, 
which  will  usually  pass  unquestioned  when  found  upon  the  ab- 
stract. Want  of  consideration  may  be  sufficient  to  raise  an 
inquiry,^  yet,  as  has  been  seen,  this  of  itself  does  not  denote  bad 

96    3   Wash.   Eeal   Prop.    329    (4th  99  Farwell  v.  Eogers,  99  Mass.  36; 

Ed.).  Warner  v.  Bull,  13  Met.  4. 

97Sohier  v.  Coffin,  101  Mass.  179;  1  Edwards    v.    Rays,    18    Vt.    473; 

Jones  V.  Monroe,  32  Ga.  188.  Wade  v.  Lindsey,  6  Met.  407;  Betsey 

98  Hall  V.  Ashby,  9  Ohio,  96;  v.  Torrance,  34  Miss.  138;  Farnum  v. 
Shortall  v.  ITinklcy,  31  111.  219;  Petorson,  111  Mass.  151.  The  English 
Crane  v.  Eceder,  21  Mich.  82;  Stew-  statutes  upon  which  this  doctrine  was 
art  V.  McSweeney,  14  Wis.  471.  Un-  founded,  grew  out  of  peculiar  exi- 
der  these  statutes  any  one  claiming  gencies  entirely  foreign  to  our  condi- 
title  to  land  although  out  of  posses-  tion  and  habits.  They  were  passed 
sion,  and  notwithstanding  there  may  at  the  close  of  revolutions,  when  the 
be  an  actual  adverse  possession,  may  property  of  the  kingdom  having  to  a 
sell  and  convey  the  same  as  though  great  extent  changed  hands,  it  be- 
in  actual  possession,  and  his  deed  will  came  the  interest  of  those  who  suc- 
give  the  grantee  the  same  right  of  ceeded  to  power  to  place  every  possi- 
recovery  in  ejectment  as  if  the  grant-  ble  obstacle  in  the  way  of  the  former 
or  had  been  in  the  actual  possession  proprietors  recovering  possession. 
when  he  conveyed :  Chicago  v.  Vul-  2  Dyer  v.  Homer,  22  Pick.  258 ; 
can  Iron  Works,  93  HI.  222.  Dunlap  v.  Dunlap,  10  Ohio,  162;  Har- 


§235]  CONVEYANCES   BY   INDIVIDUALS.  255 

faith,  nor  is  a  consideration  essential  to  the  vesting  of  the  title, 
and  where  the  controlling  motive  in  making  the  deed  was  to  defeat 
creditors,  a  full  consideration  is  usually  expressed.  The  invalidity 
of  a  deed  is  usually  the  result  of  a  decision  of  a  court,  and  what- 
ever internal  evidence  it  may  possess  will  rarely  decide  its  char- 
acter. 

The  question  of  fraudulent  intent,  as  a  rule,  is  confined  to  the 
immediate  parties  and  does  not  extend  to  the  second  grantee,  who, 
if  acting  in  good  faitli  and  without  notice,  will  take  the  property, 
and  the  full  title,  purged  of  its  former  taint.*  Such  a  purchaser 
is  a  favorite  in  the  eyes  of  a  court  of  equity,^ 

§235.  Conveyances  Subject  to  Incumbrance.  Where  land  is 
conveyed  subject  to  a  mortgage,  a  promise  to  pay  the  debt  thus 
secured  can  not  be  inferred  from  the  mere  acceptance  of  the  deed,^ 
even  though  made  a  part  of  the  consideration.'  In  the  absence 
of  other  evidence,  such  a  deed  shows  that  the  grantee  merely  pur- 
chased the  equity  of  redemption.^  But  if  a  grantee  takes  a  deed, 
containing  a  stipulation  that  the  land  is  subject  to  a  mortgage, 
which  the  grantee  assumes  or  agrees  to  pay,  a  duty  of  payment  is 
imposed  on  him  by  the  acceptance,  and  the  law  implies  a  promise 
to  perform  it.®  This,  of  course,  only  applies  where  there  has  been 
an  actual  acceptance  by  the  grantee,  for  the  simple  facts  of  execu- 
tion, acknowledgment,  and  recording  of  a  deed  of  incumbered  prop- 
erty, with  a  clause  therein  that  the  grantee  shall  pay  the  mort- 
gage indebtedness,  is  not  sufficient,  in  itself,  to  create  a  personal 
liability  on  the  part  of  such  grantee  unless  he  has  assented  to 
such  clause,  yet  as  we  have  seen,  by  his  acceptance  of  the  deed 
his  assent  to  all  it  contains  may  be  inferred.^** 

The  examiner  should  observe  great  care,  therefore,  in  the  ab- 
stracting of  clauses  relating  to  subsisting  claims  or  incumbrances, 
for  the  purchaser  is  charged  with  notice  of  all  recitals  of  this  char- 
acter, and  is  bound  thereby  even  though  such  incumbrance  fails 

vey  V.  Varney,  98  Mass.  118;  Horner  6  Ins.  Co.  v.  Stewart,  86  Pa.  St.  89. 

V.  Zimmerman,  45  111.  14;  Stevens  v.  7Fiske  v.  Tolman,  124  Mass.  254. 

Harrow,  26  Iowa,  458.                          .  Compare  Twitchell  v.  Mears,  8  Biss. 

3  See,    Ten    Eyck   v.    Witbeck,    135  (C.  Ct.)  211. 

N.  Y.  40    31  N.  E.  994.  8  Strong  v.  Converse,  8  Allen,  557. 

4  Jackson  v.  Henry,  10  Johns.  185;  9  Pike  v.  Brown,  7  Cush.  133;  Fur- 
Wright  V.  Howell,  35  Iowa,  292;  1  nas  v.  Durgin,  119  Mass.  500;  Schu- 
Story  Eq.  Jur.  §434;  George  v.  Kim-  mucker  v.  Sibert,  18  Kan.  104;  Miller 
ball,  24  Pick.  238;  4  Kent  Com.  (11th  v.  Thompson,  34  Mich.  10. 

Ed.)    464.  ^^  Thompson   v.   Dearborn,   107   III. 

5  1  Story  Eq.  Jur.   §  434.  87. 


256  ABSTRACTS   OF  TITLE.  [§  235 

to  appear  of  record.**  Though  the  conveyance  of  property  subject 
to  mortgage,  unless  expressly  so  provided,  imposes  no  personal  lia- 
bility on  the  grantee,  it  yet  raises  a  presumption  that  the  pur- 
chaser buys  the  property  to  the  extent  stated,  and  takes  his  chances 
of  realizing  out  of  it  enough,  over  and  above  the  mortgage,  to 
indemnify  him  for  his  advance  of  purchase  money.  The  fair  infer- 
ence is  that  the  purchaser  does  not  pay  the  vendor  the  full  value 
of  the  property,  but  that  the  amount  of  the  mortgage  debt  is 
reserved  in  his  hands  as  so  much  purchase  money  for  the  purpose 
of  discharging  the  lien.  In  such  case  the  land  conveyed  is  as 
effectually  charged  with  the  amount  of  the  mortgage  as  if  the  pur- 
chaser had  expressly  assumed  its  payment.*'^ 

In  deeds  of  this  character,  where  the  transaction  is  recent,  the 
clause  relating  to  incumbrances  should  be  shown  in  the  abstract 
substantially  as  it  appears  in  the  deed.    Thus : 

Subject,  it  is  stated,  to  the  lien  of  a  mortgage  from  Thomas 
Jones  to  Henry  Jackson,  dated  June  18,  1920,  and  recorded 
in  Book  80  of  Records,  page  320,  securing  the  payment  of 
$5,000.00  on  June  18,  1925,  which  debt,  together  unth  the  interest 
thereo7i  from  "this  date,"  said  second  party  assumes  and  agrees 
to  pay  (a^  pari  of  the  purchase  money  for  the  land  hereby  con- 
veyed). 

As  between  the  vendor  and  the  purchaser  of  the  equity  of  re- 
demption, the  general  rule  is  that  the  land  is  the  primary  fund  for 
the  liquidation  of  the  incumbrance,*^  but  where  the  payment  of 
an  outstanding  incumbrance,  created  by  the  grantor,  expressly 
constitutes  part  of  the  purchase  money,  it  has  been  held  in  some 
cases  that  the  law  will  imply  an  undertaking  by  the  purchaser  to 
pay  it,  upon  which  the  mortgagee  may  recover.**  Where  this  doc- 
trine obtains  the  consideration  recital  becomes  important  and 
should  be  fully  show-n  in  the  abstract. 

§  236.  Dedication  by  Deed.  Intent,  as  has  been  stated,  is  the 
vital  principle  of  dedication.  In  a  case  where  acts  and  declara- 
tions are  relied  on  to  show  such  intent,  to  be  effectual  they  must 

11  White  V.  Foster,  102  Mass.  375;  595;  Wedge  v.  Moore,  6  Cush.  8; 
Vaughan  v.  Greer,  38  Tex.  530.  Eaton  v.  Simmonds,  14  Pick.  98. 

12  Gale  V.  Wilson,  30  Gratt.  (Va.)  14  Twitchell  v.  Mears,  8  Biss.  (C. 
166.                                                                      t!t.)   211;   and  see  Garsney  v.  Eogers, 

IS  Daniel     v.     Leitch,     13     Gratt.      47  N.  Y.  233. 
(Va.)   206;  Jumel  v.  Jumel,  7  Paige, 


§  237]  CONVEYANCES   BY   INDIVIDUALS.  257 

be  unmistakable  in  their  purpose  and  decisive  in  their  character; 
and  in  every  case  must  be  unequivocally  and  satisfactorily 
proved. ^^  "Where  the  deed  relied  on  is  to  the  public  direct,  that 
is,  to  the  State  or  any  of  its  municipal  agencies,  no  question  as 
to  the  intent  can  usually  arise ;  but  when  the  dedicatory  matter 
forms  a  recital  or  agreement  in  a  deed  between  individuals,  the 
rule  above  stated  becomes  efficient  to  determine  its  import.  In 
ascertaining  the  intent  of  the  parties  in  the  latter  case,  it  is  a 
fundamental  rule  of  construction,  that  the  language  employed  is  to 
be  read  in  the  light  afforded  by  the  subject-matter  and  the  sur- 
rounding circumstances,^^  while  every  part  of  the  deed  is  admissi- 
ble to  declare  the  meaning  of  certain  passages,  and  such  construc- 
tion should  be  put  upon  particular  words  as  will  best  answer  and 
effectuate  the  apparent  general  intention. i' 

The  recitals  indicative  of  dedication  are  best  shown  by  a  literal 
transcription,  whenever  the  circumstances  will  admit  of  such  treat- 
ment, or  a  judicious  condensation  of  the  agreement,  covenants  and 
declaration  of  uses,  may  be  presented  when  such  a  course  may 
not  be  desirable ;  but,  in  any  event,  sufficient  of  the  language 
employed  should  be  given  as  will  enable  counsel  to  determine 
whether  there  has  been  a  dedication  to  public  uses,  or  simply  an 
adjustment  of  the  conflicting  claims  of  the  parties,  resulting  in 
a  common  right  of  way  to  be  annexed  as  an  easement  to  the  prop- 
erty for  the  convenience  of  the  owners,  and  not  for  the  accommo- 
dation of  the  public. 

§  237.  Resulting  Trusts.  It  is  a  general  rule  of  equity,  that  if 
the  purchase  money  of  land  is  paid  by  one  person,  but  the  deed, 
through  any  accident,  mistake,  fraud,  or  other  circumstances  con- 
trary to  the  real  intention  of  the  parties,  is  taken  in  the  name 
of  another,  the  trust  of  the  legal  estate  results  to  him  who  advanced 
the  money,^*  and  this  circumstance  formerly  raised  many  ques- 
tions in  examinations  of  title.  However,  of  late  years,  the  opera- 
tion of  this  rule  has  been  greatly  restricted  by  statute,  and  many 
of  the  questions  which  formerly  perplexed  examiner  and  counsel 

15  Harris'  case,  20  Gratt.  (Va.)  ing  v.  McHale,  47  111.  282;  Dryden  v. 
833;  Holdane  v.  Cold  Spring,  21  N.  Hanway,  31  Md.  254;  Mallory  v. 
Y.  474;  Harding  v.  Hale,  61  111.  192.      Mallory,  5  Bush  (Ky.),  464;  Johnson 

16  Nash  V.  Towne,  5  Wall.  689.  v.  Quarks,  46  Mo.  423;   Nixon's  Ap- 
HTalbott   V.   E.   R.   Co.   31    Gratt.      peal,    63    Pa.    St.    279;    Campbell    v. 

(Va.)  685.  Campbell,   21   Mich.    438;    Harvey   v. 

18  Case   V.    Codding,    38    Cal.    191;       Ledbetter,  48  Miss.  95. 
Frederick  v.  Haas,  5  Nev.  389;  Flem- 
Warvelle  Abstracts — 17 


258  ABSTRACTS   OP   TITLE,  [§  237 

are  now  laid  at  rest.  The  statute  has  not  abolished  trusts  arising 
or  resulting  by  implication  of  law,  but  in  a  majority  oi"  instances 
has  declared  the  legal  title  to  be  vested  in  the  alienee  named  in 
the  deed,  subject  to  the  claims  of  creditors  of  the  person  paying 
the  consideration,  in  whose  favor  a  trust  for  the  amount  of  their 
claims  results,  but  even  such  trust  cannot  be  established  to  defeat 
or  prejudice  the  title  of  a  purchaser  for  a  valuable  consideration 
and  without  notice  of  such  trust,^^ 

Wherever  the  foregoing  law  obtains,  and  it  is  now  very  general, 
but  little  difficulty  will  be  experienced  from  this  class  of  undis- 
closed trusts,  and  until  their  efficiency  has  been  declared  by  a  court 
of  competent  jurisdiction  they  can  form  no  appreciable  factor  in 
making  up  the  estimate  of  title.  A  neglect  to  state  the  considera- 
tion of  the  conveyance  or  acknowledge  its  payment  was  formerly 
considered  evidence  of  a  resulting  trust  in  favor  of  the  grantor 
or  some  other  person  paying  same,  but  this,  as  has  been  seen,  no 
longer  prevails,  and  a  failure  to  recite  the  consideration  will  not 
materially  aft'ect  the  conveyance  though  it  may,  in  some  localities, 
be  evidence  of  a  vendor's  lien. 

§  238.  Re-records  and  Duplicates.  Re-records  and  duplicates  of 
instruments  already  shown  in  present  or  former  examinations,  if 
they  disclose  no  variations,  may  be  passed  with  the  briefest  notice. 
Such  instruments  only  serve  to  incumber  the  chain,  and  should  be 
kept  out  of  sight  as  far  as  possible. 

The  following  is  considered  a  sufficient  notice : 


Deed. 
Bated,  etcP 


Henry  M.  Packham,  bachelor, 

to 
The  Illinois  Central  Railroad 

Company,  its  successors  and 

assigns.  A    re-record    of    deed    recorded 

Aug.  16,  1852,  as  Doc.  36,168,  in  Book  101,  page  580,  as  appears 
by  the  Recorder's  certificate  appended  to  the  record. 

Notwithstanding  the  recorder's  certificate  shows  an  instrument 
to  be  a  re-record  it  should  yet  be  carefully  perused  by  the  exam- 

19  See  R.   S.  Wis.,  Chap.  96;   Gen.  20  Here    follows    the    various    mat- 

Stat.   Minn.,   Chap.   43;    Comp.    Laws  ters    relating   to   registration,   consid- 

Mich.   §2637;  R.  S.  N.  Y.   §51;  con-  oration,  the   grant,  etc.,   as   shown   in 

suit  Martin  v.  Martin,  5  Bush   (Ky.),  previous  examples.     For  brevity  they 

47;   Durfee  v.  Pavitt,   14  Minn.  424;  are  omitted  in  the  form  above  given 

Fisher  v.  Forbes,  22  Mich.  454;  Foote  and  the  same  course  wUl  be  pursued 

V.  Bryant,  47  N.  Y.  544.  for  the  remainder  of  the  work. 


§  239]  CONVEYANCES   BY   INDIVIDUALS.  259 

iner,  as  such  re-recording  is  sometimes  made  for  the  purpose  of 
correcting  mistakes  or  inaccuracies  in  the  original  record.  Where 
differences  between  the  two  appear  the  divergence  should  be  noted, 
as  per  the  following: 

A  re-record  of  deed  recorded,  etc.,  [set  out  facts  as  in  foregoing 
example]  with  the  name  of  grantee  written  William  J.  Van  Allen 
instead  of  William  T.  Van  Allen. 

In  case  of  duplicates,  say: 

Apparently  a  duplicate  of  lease  recorded  Sept.  5,  1882,  as  Doc. 
100,580,  in  Book  910,  page  550  (and  shown  as  No.  15  of  this  ex- 
amination). 

A  re-record,  of  course,  carries  its  own  internal  evidence,  while 
duplicates  can  only  be  classed  as  such  by  inference,  yet  where  there 
appears  an  exact  correspondence  of  parties,  dates,  subject-matter, 
as  well  as  identity  of  language,  it  is  almost  impossible  that  the 
examiner  shall  err  in  classing  it  as  a  duplicate.  When  the  originals 
appear  in  the  same  examination,  re-records  and  duplicates  should, 
whenever  practicable,  immediately  follow  such  originals,  in  which 
event  say : 

Apparently  a  duplicate  of  the  foregoing  instrument. 

When  such  original  instruments  do  not  form  a  portion  of  the 
examination,  the  re-records  should  not  be  inserted  in  the  chain  of 
title,  but  are  best  shown  among  the  appendices,  under  the  head  of 
"Re-records,"  or  "We  also  find." 

§  239.  Corrected  Records.  Not  infrequently  instruments  are 
incorrectly  transcribed  by  tlie  recording  officer  and  the  error  of 
transcription  only  becomes  manifest  after  an  abstract  of  the  record 
has.  been  made.  In  such  cases  a  correction  of  the  record  is  usually 
had  and  a  mention  of  such  corrected  record  becomes  necessary  in 
the  abstract.  It  is,  of  course,  permissible  for  the  examiner  to  cor- 
rect the  abstract  to  conform  to  the  corrected  record,  but  this  means 
an  erasure  or  mutilation  of  some  kind,  and  if  such  correction  is 
made  after  the  abstract  has  left  the  examiner's  hands  a  precedent 
of  most  doubtful  character  is  established.  In  such  event,  perhaps, 
it  is  better  to  add  a  marginal  note  showing  the  correction  than  to 
tamper  with  what  has  already  been  shown.    If  this  shall  be  thought 


260  ABSTRACTS   OF   TITLE.  [§  239 

desirable  somctliiiijr  like  the  t'ollowiiiG:  may  be  inserted  after  the 
erroneous  item  or  placed  opposite  to  it  in  the  margin  of  the  ab- 
straet : 

Note. — Since  the  date  of  this  examination  the  record  of  the  fore- 
going deed  has  been  corrected  by  the  Recorder  so  tlmt  the 
description  of  the  land  thereby  conveyed  now  appears  on 
such  record  a^  follows:  [Here  set  out  the  corrected  de- 
scription or  other  matter.] 

(Signed)     Handy  &  Company, 
Chicago,  June  1,  1903.  Examiners. 


CHAPTER  XVI 


SPECIAL   CLASSES   OF   INDIVIDUAL   CONVEYANCES 


§  240.    Marriage      settlements — Ante-  S  255, 

nuptial  agreements.  §  256. 
§  241.     Conveyances   to    husband   and 

wife.  §  257. 
§  242.     Conveyances  between  husband 

and  wife.  §  258. 

§  243.     Conveyances        by        married  §  259. 

women. 

§  244.     Effect   of   wife 's   conveyance.  §  260. 

§  245.     Acknowledgment  of  deeds  by  §  261. 

married  women.  §  262. 
§  246.    Eelease  of  dower. 

§  247.     Joint  tenancies  and  tenancies  §  26.3. 

in  common.  §  264. 

§  248.     Partition  deeds.  §  265. 

§  249.     Partnership    conveyances.  §  266. 

§  250.     Corporate  conveyances.  §  267. 

§251.     Statute  of  mortmain.  §268. 
§  252.     Power  of  acquisition — User. 

§  253.     Municipal    corporations.  §  269. 
§  254.     Conveyances    to    corporations. 


Conveyances   by   corporations. 

Continued  —  Execution — Ac- 
knowledgment. 

Acts  of  oflBcers  in  excess  of 
charter  powers. 

Eecord  of   seal. 

Conveyances  by  incorporated 
religious   societies. 

Heirs  at  law. 

Post  obit  conveyances. 

Conveyances  by  delegated  au- 
thority. 

Powers   of  attorney. 

Kevocations. 

Conveyances  in  trust. 

Revocation  of  trust. 

Declarations  of  trust. 

Eemoval  and  substitution  of 
trustees. 

Resignation — Refusal  to  act 
— Successor. 


§240.  Marriage  Settlements.  It  was  at  one  time  doubted 
whether  any  interest  in  either  real  or  personal  property  could  be  set- 
tled to  the  exclusive  use  of  a  married  woman  without  the  interven- 
tion of  trustees ;  but  for  many  years  direct  conveyances  and  settle- 
ments have  been  protected  in  equity  alike  against  the  marital  rights 
of  the  husband,  as  against  his  creditors.  Nor  is  it  at  all  material 
whether  the  settlement  be  made  by  a  stranger  or  by  the  husband 
himself,  for  it  is  now  universally  held  that  a  settlement  by  a  hus- 
band, on  his  wife,  made  by  direct  conveyance  to  her,  will  be  en- 
forced in  the  same  manner,  and  under  the  same  circumstances, 
that  it  would  be  if  made  by  a  stranger,  or  to  a  trustee  for  her  ex- 
clusive use.^ 

A  marriage  settlement  usually  conferred  upon  the  wife  only  the 


IJones  V.  Clifton,  101  U.  S.  225; 
Sims.  V.  Rickets,  35  Ind.  192;  Put- 
nam  V.  Bicknell,  18  Wis.   351;    Bur- 


dens V.  Amperse,  14  Mich.  91;  Wal- 
lingford  v.  Allen,  10  Pet.  594. 


261 


262  ABSTRACTS   OF   TITLE.  [§  240 

use  of  the  property  diirin{]i:  her  life,  or  for  a  definite  period,  with  a 
remainder  in  fee  to  her  issue  or  other  persons  designated;  but 
marriage  settlements  proper  have  fallen  into  general  disuse,  while 
the  general  abolition  of  uses  and  trusts,  and  removal  of  former 
disabilities,  have  placed  conveyances  for  this  purpose  upon  the  same 
plane  and  subject  to  the  same  rules  as  other  conveyances  between 
individuals. 

Conveyances,  of  whatever  nature,  intended  as  a  settlement, 
should  be  shown  quite  fully,  particularly  the  granting  clause  and 
habendum,  together  with  any  special  matter  by  way  of  restriction, 
for  the  power  of  disposition  may  be  restricted  or  enlarged  by  the 
teims  of  the  settlement;  and  in  construing  these  terms,  the  inten- 
tion of  the  grantor,  as  apparent  upon  a  fair  construction  of  the 
instrument,  must  govern.^  If  the  instrument  contains  any  express 
or  implied  restrictions  upon  the  power  of  disposition,  either  as  to 
the  mode  of  conveyance,  or  purpose  for  which  it  was  conveyed, 
the  wife  can  convey  it  in  no  other  manner  and  for  no  other  purpose, 
while  if  it  contains  no  limitations  or  restrictions,  express  or  im- 
plied, she  may  convey  it  in  the  same  manner  as  her  general  estate.' 

§  240a.  Antenuptial  Agreements.  Contracts  made  by  parties 
in  contemplation  of  marriage,  which  determine  the  prospective 
rights  of  each  in  the  property  of  the  other,  both  during  and  after 
the  marriage,  are  in  common  use  and  will  sometimes  be  found  in 
examinations  of  title.  It  is  not  customary,  however,  to  place  doc- 
uments of  this  kind  on  record,  except  as  this  may  incidentally 
occur  in  the  distribution  of  estates  or  when  presented  to  a  court  for 
special  action. 

Usually  they  provide  for  a  specific  allowance  on  the  death  of 
either  of  the  parties  after  marriage  and  a  surrender  of  all  statu- 
tory rights  which  the  surviving  spouse  would  otherwise  have  in 
the  estate  of  the  deceased  consort.  Such  contracts  are  not  against 
public  policy  and,  when  free  from  fraud  or  imposition,  are  en- 
forcible  and  effective  for  the  purpose  indicated.*  The  agreement 
to  marry  is  a  sufficient  consideration  to  support  an  antenuptial  con- 
tract definitely  fixing  the  rights  of  the  parties  and  the  release  by 
each  of  all  interest  in  the  property  of  the  other." 

2  Young  V.  Young,  7  Coldw.  4Eieger  v.  Schaible,  81  Neb.  3.3, 
(Tenn.)  461;  McChesney  v.  Brown's  115  N.  W.  560,  17  L.  R.  A.  (N.  8.) 
Heirs,   25  Gratt.    (Va.)    393.  866;    West    v.   Walker,    77   Wis.    557, 

3  Young  V.  Young,  7  Coldw.  46  N.  W.  819 ;  Paine  v.  Hollister,  139 
(Tenn.)  461;  McClintic  v.  Ocheltree,  Mass.  144,  29  N.  E.  541;  Kroll  v. 
4   W.   Va.   249;    Kimm    v.   Weippert,  Kroll,  219  Bl.  105,  76  N.  E.  63. 

46  Mo.  532.  6Ee  Appleby's   Estate,   100   Minn. 


§  241]  SPECIAL    CLASSES   OF   INDIVIDUAL    CONVEYANCES.  263 

§  241.  Conveyances  to  Husband  and  Wife.  Under  the  common 
law,  a  grant  to  a  man  and  his  wife  does  not  constitute  them  either 
joint  tenants  or  tenants  in  common,  they  being  in  legal  contem- 
plation but  one  person,  and  hence  unable  to  take  by  moieties.  Both 
would  therefore  be  seized  of  the  entirety ;  neither  could  dispose  of 
any  part  of  the  estate  without  the  assent  of  the  other,  and  upon 
the  death  of  either,  the  whole  of  the  estate  would  remain  in  the 
survivor.  This  rule  has  not  been  materially  changed  by  statute 
and  is  accepted  in  a  majority  of  the  States.® 

In  such  an  estate  there  can  be  no  partition,  as  neither  spouse 
has  any  separate  interest.'  Between  them  there  is  but  one  owner, 
and  that  is  neither  the  one  nor  the  other,  but  both  together.  The 
common  law  permitted  the  husband,  for  his  own  benefit,  during 
their  joint  lives,  to  use,  possess  and  control  the  land  and  take  all 
the  profits  thereof,  and  even  to  mortgage  and  convey  an  estate  to 
continue  during  such  joint  lives,  though  he  could  make  no  dispo- 
sition of  the  land  that  would  prejudice  the  right  of  the  wife  in  case 
she  survived  him ;  but  later  authorities  hold  that,  from  the  peculiar 
nature  of  this  estate,  and  from  the  legal  relation  of  the  parties, 
there  must  be  unity  of  estate,  unity  of  possession,  unity  of  control, 
and  unity  in  conveying  and  incumbering  it ;  and  it  necessarily  and 
logically  results  that  it  cannot  be  seized  and  sold  upon  execution 
for  the  separate  debts  of  either.* 

In  several  of  the  States  where  the  rule  formerly  prevailed,  it 
has  been  held  that  the  legal  unity  of  husband  and  wife  has  been 

408,    111    N.    W.    305,    10    L.    R.    A.  ciple  of  the  community  system  is  that 

(N.   S.)    590;    Rieger  v.   Schaible,   81  whatever  is  acquired  by  the  joint  ef- 

Neb.   33.  forts  of  husband  and  wife   shall  be 

6  Arnold  v.  Arnold,  30  Ind.  305 ;  their  common  property ;  that  the 
Hemingway  v.  Scales,  42  Miss.  1;  matrimonial  relation  in  respect  to  the 
Washburn  v.  Burns,  34  N.  J.  L.  18;  property  acquired  during  its  exist- 
McCurdy  v.  Canning,  64  Pa.  St.  39;  ence  is  in  fact  a  community,  of  which 
Fisher  v.  Provin,  25  Mich.  347;  Gar-  each  spouse  is  a  member,  equally  Con- 
ner V.  Jones,  52  Mo.  68;  Robinson  v.  tributing  by  his  or  her  industry  to 
Eagle,  29  Ark.  202 ;  Marburg  v.  Cole,  its  prosperity,  and  possessing  an  equal 
49  Md.  402;  Hulet  v.  Inlow,  57  Ind.  right  to  succeed  to  the  property  after 
412;  Bertles  v.  Nunan,  92  N.  Y.  152;  dissolution  in  ease  of  one  surviving 
Meyers  v.  Reed,  17  Fed.  Rep.  40.  the  other.     It  extends  to  real  as  well 

7  In  some  of  the  Western  States  as  personal  property,  and  includes 
there  is  a  peculiar  system  of  property  everything,  acquired  by  either  hus- 
rights  growing  out  of  the  marital  re-  band  or  wife  during  the  marriage,  ex- 
lation,  which,  while  it  originated  in  cept  that  which  is  acquired  by  gift, 
the   civil  law  has  been  borrowed  di-  devise  or  descent. 

rectly   from    the   Spanish   or   Mexican  8  Chandler  v.  Cheney,  37  Ind.  391 ; 

law.     This   is  known   as   the  doctrine       McDuff  v.  Boauchamp,  50  Miss.  531; 
of  community.     The  underlying  prin-      Hulett  v.  Inlow,  57  Ind.  412. 


2G4:  ABSTR.VCTS  OP   TITLE.  [§  241 

broken  by  the  "married  women's"  acts,  and  that  they  take  only 
as  tenants  in  common.®  But  estates  which  had  vested  prior  to  the 
acts  in  question  are  not  affected,  changed  or  modified  by  them. 
They  remove  no  disabilities  and  confer  no  new  rights  in  relation 
to  such  estates,  which  can  only  be  conveyed  or  incumbered  by  the 
joint  act  of  both  parties,  while  the  survivor  takes  an  absolute  title 
to  the  whole  in  case  of  death,  as  heretofore.^** 

The  legislation  of  the  States,  concerning  the  property  rights  of 
married  women,  has  been  very  uniform,  but  the  judicial  construc- 
tion of  similar  statutes  has  been  variant  and  contradictory.  In 
some  instances,  as  has  been  observed,  courts  have  decided  that  stat- 
utes making  joint  grantees  tenants  in  common,  and  giving  to  mar- 
ried women  the  same  rights  in  property  as  though  they  were  sole, 
have  effectually  destroyed  the  common  law  unity  of  husband  and 
wife,  and  made  them  substantially  separate  persons  for  all  pur- 
poses; but  in  a  majority  of  the  States  the  declared  effect  of  these 
statutes  has  been  confined  to  their  express  terms  and  they  have 
been  held  to  have  no  relation  to  or  effect  upon  real  estates  conveyed 
to  husband  and  wife  jointly,  and  that,  notwithstanding  the  stat- 
utes, they  still  take  as  tenants  by  the  entirety.^^ 

The  granting  clause  and  habendum  may  serve  in  many  instances 
to  determine  the  nature  of  the  estate  granted,  and  it  is  advisable, 
in  all  cases  where  the  deed  purports  to  convey  to  husband  and  wife, 
to  set  out  sufficient  of  both  clauses  to  fully  disclose  the  nature  of 
the  grant.  As  a  general  rule,  no  special  language  is  required  to 
create  an  estate  of  entirety  and  where  the  deed  does  not  specify 
the  manner  in  which  they  are  to  hold  the  land  a  tenanc}'  by  en- 
tirety will  be  presumed.^^  This  conforms  to  the  rule  of  the  com- 
mon law  which  provides  that  in  a  conveyance  to  both  spouses  they 
will  take  as  joint  tenants  or  tenants  in  common  only  by  express 
words,  or  words  strongly  implying  such  intention.^^  Where  the 
words  of  the  grant  clearly  show  that  the  intent  was  to  create  a 
tenancy  in  common  effect  will  be  given  to  it  and  they  will  so  hold.^* 

§242.  Conveyances  Between  Husband  and  Wife.  It  is  now 
well  settled  that  a  conveyance  by  a  husband  to  his  wife,  without 

9  Hoffman  v.  Stigers,  28  Iowa,  302 ;  inson  v.  Eagle,  29  Ark.  203 ;  McDuff 

Clark  V.  Clark,  56  N.  H.  105;  Cooper  v.  Beauchamp,  50  Miss.  531. 

V.    Cooper,    76    111.    57;    Walthall    v.  12  Stelz  v.  Shreck,  128  N.  Y.  263; 

Goree,  36  Ala.  728.  Phelps    v.    Simons,    159    Mass.    415; 

lOHarrer  v.  Wallner,  80  111.  197.  Morrison    v.    Seybold,    92    Ind.    298; 

11  Bertles  v.  Nunan,  92  N.  Y.  152 ;  Bramberry  's  Appeal,  156  Pa.  St.  628. 

Bates  V.  Seeley,  46  Pa.  St.  248;  Bob-  13  Baker  v.  Stewart,  40  Kan.  U2. 


§  243]  SPECIAL   CLASSES  OF  INDIVIDUAL   CONVEYANCES.  265 

the  intervention  of  a  third  person  or  trustee,  where  suitable  and 
meritorious,  and  not  in  fraud  of  creditors,  will  be  upheld  in 
equity,^^  while  in  those  States  where  the  legal  identity  of  husband 
and  wife  is  no  longer  recognized,  such  conveyance  may  be  good  at 
law.*^  Where  the  ancient  doctrine  still  obtains,  a  deed  from  hus- 
band to  wife,  without  the  intervention  of  a  trustee,  is  void  at  law ; 
nor  can  a  court  of  equity  regard  it  as  effectual  to  transfer  the  legal 
title.  But  where  such  deed  is  founded  upon  a  good  and  sufficient 
consideration,^''  equity  will  enforce  it  according  to  the  intention 
of  the  parties,  where  the  same  can  be  done  without  prejudice  to  the 
rights  of  others.^* 

A  voluntary  conveyance,  that  is,  a  conveyance  without  consid- 
eration, is  a  fraud  upon  the  creditors  of  the  husband,  even  in  the 
absence  of  fraudulent  intent,  and  this  is  especially  true  when  the 
conveyance  leaves  the  husband  insolvent.^^  As  a  rule,  conveyances 
of  this  class  call  for  close  scrutiny,  and  frequently  for  inquiries  in 
pais.  Local  statutes  will  go  far  to  settle  many  questions,  yet  there 
are  numerous  cases,  even  under  favorable  statutes,  where  a  knowl- 
edge of  the  circumstances  and  situation  of  the  parties  must  result 
in  the  rejection  of  the  title  so  offered,  whether  the  conveyance  be 
to  the  wife  direct,  or  through  an  intermediary,  for  it  is  a  funda- 
mental principle  that  the  rights  of  creditors  cannot  be  infringed 
or  defeated  in  this  manner. ^'^ 

§  243.  Conveyances  by  Married  Women.  No  class  of  convey- 
ances call  for  greater  vigilance  or  closer  scrutiny  than  those  ex- 
ecuted by  married  women.  Though  at  present  a  progressive  and 
liberal  spirit  is  manifest  in  the  enactments  of  the  various  State 
legislatures,  tending  to  remove  entirely  all  restraints  and  impedi- 
ments from  the  free  acquisition  and  alienation  of  real  property  by 


14  Miner  v.  Brown,  133  N.  T.  308 
Thornburg  v.  "Wiggins,  135  Ind.  178 

15  Hunt  V.  Johnson,  44  N.  Y.  27 
Simmons  v.  Thomas,  43  Miss.  31 
Sherman    v.    Hogland,    54    Ind.    578 


is  made  as  a  provision  for  her,  this 
will  be  sufficient,  for  the  duty  of 
maintenance  which  a  husband  owes  to 
a  wife  is  a  good  consideration  for  a 
voluntary  conveyance  vesting  title  in 


Montz  v.  Hoffman,  35  111.  553;  Hock-  her:  Gill  v.  Wood,  Adm'r,  81  111.  64; 

ett  v.  Bailey,  86  111.  76.  Kellogg  v.  Hale,  108  111.  164. 

16  Booker  v.   Worrill,   55   Ga.   332;  18  Huber   v.   Huber,   10   Ohio,  371; 

Dickson    v.    Eandal,    19    Kan.    212;  Brookbank  v.  Kernard,  41  Ind.  339; 

Barclay  v.  Plant,  50  Ala.  509;  Kauf-  Cardell  v.  Eyder,  35  Vt.  47. 

man  v.  Whitney,  50  Miss.  103.  19  Watson   v.    Riskamire,   45   Iowa, 

17 Not    necessarily    money:     Wells  231. 

V.    Wells,    35    Miss.    664;    Wilder   v.  zoAultman   v.    Obenneyer,    6   Neb. 

Brooks,  10  Minn.  50;  Sims  v.  Rickets,  260. 
35   Ind.   181.     When   the  conveyance 


26{)  ABSTRACTS   OP   TITLE.  [§  243 

man-iod  women,  yet  such  euactments  are  of  very  recent  origin,  and 
furnish  no  rule  for  the  construction  of  conveyances  made  prior  to 
the  time  at  whieh  they  became  effective.  At  common  law,  a  mar- 
ried -woman  could  make  no  disposition  of  her  lands  except  by  some 
matter  of  record,  as  a  fine  and  recovery;*^  hence  it  follows  that  a 
conveyance  of  her  separate  property  by  a  woman  during  her  cover- 
ture would  be  void,  unless  specially  authorized  by  statute.^^  g^eh 
statutes  now  exist,  however,  and  confer  upon  married  women  a 
number  of  rights,  which,  being  in  derogation  of  common  law  prin- 
ciples, are  strictly  construed  by  the  courts.  In  all  cases  a  rigid 
and  literal  compliance  with  the  statute  is  essential  to  vest  title. 
The  removal  of  the  common  law  disabilities  was  not  accomplished 
at  any  one  time,  but  extends  over  a  series  of  years,  and  an  addi- 
tional burden  is  throwm  on  examiner  and  counsel  by  this  fact. 
Different  formalities  were  requisite  at  different  periods,  and  thor- 
ougli  knowledge  of  the  changes  in  the  law  in  this  respect  are  indis- 
pensable to  a  correct  and  satisfactory  examination. 

By  the  common  law,  upon  the  marriage  of  a  man  with  a  woman 
seized  of  an  estate  of  inheritance,  he  became  seized  of  the  freehold 
jure  nxaris  during  their  joint  lives,  and  if  he  had  issue  by  her 
born  alive,  then  for  his  own  life  absolutely ;  in  which  latter  case,  if 
he  survived  the  wife,  he  was  styled  tenant  by  the  curtesy .^^  Sub- 
sequently, by  statute,  the  husband  was  given  this  right  of  tenancy 
by  the  curtesy,  whether  they  had  issue  born  or  not.  In  most  of  the 
States  tenancy  by  the  curtesy  is  now  abolished.  A  few  remnants 
are  still  observable,  however,  and  local  law  must  be  resorted  to  for 
the  purpose  of  defining  the  husband 's  marital  rights. 

The  first  enactments  looking  toward  the  power  of  alienation  by 
the  wife  provided  that  conveyances  might  be  made  by  forms  of 
deeds  ordinarily  employed,  but  attended  by  many  formalities  par- 
ticularly in  the  matter  of  acknowledgment  and  authentication,  it 
being  a  vital  principle  always  that  the  husband  join  in  the  con- 
veyance. Under  these  enactments  the  acknowledgment  of  the  wife 
seems  to  have  been  the  operative  act  to  pass  title  and  not  the  de- 
livery of  the  deed.  Subsequently  the  rigors  of  the  early  rules 
became  relaxed,  and,  while  the  husband  was  still  required  to  join 
in  the  execution,  the  acknowledgment  ceased  to  be  the  effective 
means  to  work  the  transfer  of  title,  and  the  certificate  thereof  was 
placed  on  the  same  footing  as  that  required  for  an  unmarried 

211   Blk.   Com.   293;    2  Kent  Com.  23  1  Blk.  Com.  126;  2  Kent  Com. 

150.  108. 

22  Hoj-t  V.  Swar,  53  lU.  134. 


§  244]  SPECIAL    CLASSES    OP   INDIVIDUAL    CONVEYANCES,  267 

woman.  The  greater  part  of  the  old  formalities,  in  a  majority  of 
the  States,  are  no  longer  requisite,  the  gradual  and  uniform  ten- 
dency of  modern  legislation  being  to  facilitate  the  power  of  aliena- 
tion by  women  of  their  separate  estates,  though  it  is  still  indis- 
pensable, in  many  jurisdictions,  that  the  husband  join  with  the 
wife  in  the  execution  of  the  deed.^* 

Legislation,  in  some  of  the  more  advanced  States,  has  had  the 
effect  to  destroy  the  common  law  unity  of  person  in  husband  and 
wife,  so  far  as  that  unity  is  represented  by  the  husband,  and  in  its 
stead  a  rule  has  been  introduced,  analogous  to  that  of  the  civil 
law,  by  which  the  wife  is  regarded  as  a  distinct  person  so  far  as 
her  separate  property,  contracts,  etc.,  are  concerned,  while  her  con- 
veyances may  be  made  in  the  same  manner,  and  with  like  effect, 
as  if  she  were  unmarried.^^  Under  these  laws  no  joinder  is  neces- 
sary, other  than  for  the  purpose  of  waiving  homestead  or  other 
marital  rights,  and  for  all  practical  purposes  of  transfer  of  her 
separate  property  the  husband  and  wife  stand  before  the  law  as 
strangers.26 

The  tenancy  by  the  curtesy  is  also  becoming  obsolete  or  attaches 
only  on  the  death  of  the  wife,  and  then  but  to  such  lands  as  she 
died  seized  of,  and  of  which  she  had  made  no  final  disposition  by 
will.  Where,  how^ever,  the  laws  of  a  State  give  to  the  husband  the 
same  right  of  dower  in  the  real  estate  of  the  wife  that  she  has  in 
his  real  estate,  the  effect  of  a  non-joinder  of  the  husband  in  a  deed 
of  the  wife's  lands  has  the  effect  to  preserve  such  dower  interest, 
and  hence  the  joinder  becomes  necessary  to  a  properly  executed 
deed.^'' 

§244.  Effect  of  Wife's  Conveyance.  When  a  married  woman 
joins  with  her  husband,  or  otherwise  properly  executes  a  convey- 
ance of  lands,  held  by  her  in  her  own  right,  which  purports  to 
convey  the  entire  estate  therein,  she  is  estopped  from  afterward 
setting  up  any  title  to  such  lands,  whether  it  existed  at  the  time 
of  making  such  conveyance,  or  was  subsequently  acquired  by  her.^^ 
So,  too,  the  deed  or  other  contract  of  a  married  woman  respecting 
her  separate  property  may  be  reformed  for  mistake  the  same  as 
if  she  were  sole.     Where  the  deed  is  made  upon  a  good  consid- 

84  styles    v.    Probst,    69    111.    382;  621;    Tomlinson  v.   Matthews,  98   111. 

Hillman    v.    De    Nyse,    51    Ala.    95;  178. 

Hand   v.   "Winn,   52   Miss.   784;    Arm-  26  Tomlinson    v.    Matthews,    98    111. 

strong  V.  Eoss,  20  N.  J.  Eq.  109.  178. 

26  Price    V.    Osborn,    32    Wis.    34;  27  Huston  v.   Seeley,   27  Iowa,  183. 

Westlake    v.    Westlake,    34    Ohio    St.  28  King   v.   Eea,   56   Ind.   1. 


268  ABSTRACTS   OF   TITLE.  [§  245 

eration,  defects  may  be  remedied,  and  the  deed  specifically  enforced 
in  equity.^® 

§  245.  Continued — Acknowledgment.  The  formalities  attend- 
ing the  ackuowledgmeut  of  married  women's  conveyances  now 
differ  in  no  material  respect  from  other  deeds,  though  formerly 
they  involved  no  little  circumlocution  and  ceremony.  It  was,  and, 
in  some  few  States,  is  yet,  customary  to  make  a  personal  examina- 
tion of  the  wife,  apart  from  the  husband,  in  which  the  contents  and 
nature  of  the  instrument  must  be  made  known  to  her,  and  upon 
such  examination  she  is  required  to  make  a  "free  and  voluntary" 
acknowledgment  without  "  fear  or  compulsion,"  and  to  further 
state  that  she  does  not  wish  to  retract ;  that  she  resigns  her  dower, 
waives  her  homestead  rights,  etc.,  and  where  such  is  the  law,  courts 
have  usually  exacted  a  strict  and  literal  compliance,  and  material 
departures  or  omissions  have  been  held  to  vitiate  the  conveyance  as 
a  means  of  passing  the  wife's  interest  in  the  property.^**  The  law 
long  regarded  the  wife  as  under  the  control  of  the  husband,  and 
subject  to  his  coercion.  Hence,  it  was  not  expected  that  in  his 
presence,  and  within  his  hearing,  she  would  be  likely  to  act  con- 
trary to  his  wishes,  and  therefore  it  required  her  to  signify  her  wish 
or  intention  apart  from  him  before  the  officer  taking  the  acknowl- 
edgment. The  result  of  this  separate  examination  is  sometimes 
embodied  in  a  separate  certificate,  but  the  usual  method  is  to  state 
the  facts  in  a  separate  clause  attached  to  or  following  the  general 
statement  of  acknolwedgment.  In  all  cases  the  statement  of  essen- 
tial facts  must  be  clear  and  explicit. 

It  will  be  seen  from  the  foregoing  that  the  date  of  execution  may 
be  an  important  factor  in  determining  the  validity  of  a  married 
woman's  deed;  that  during  certain  periods  it  will  be  valid  only 
when  the  husband  has  joined  in  the  execution  and  the  certificate 
of  acknowledgment  shows  a  special  method  of  authentication ;  that 
during  certain  other  periods  while  the  husband  must  be  joined 
yet  the  acknowledgment  may  be  made  as  in  other  cases  of  transfer ; 
and  that  in  still  other  periods  a  married  woman's  deed  is  not  dis- 
tinguished from  that  of  her  husband,  requiring  no  joinder  and  no 
special  method  of  acknowledgment.  These  various  periods  will  be 
determined  by  local  statutory  law,  and  both  examiner  and  counsel 
must  be  conversant  therewith. 

29  Knox    V.    Brady,    74    111.    476;  Wright  v.  Dufield,  58  Tenn.  218;  Pe- 

Shivers  v.  Simmons,  54  Miss.  520.  tition  of  Bateman,  11  R.  I.  585;  Lit- 

SOPribble  v.  HaU,  13  Bush   (Ky.),  tie  v.  Dodge,  32  Ark.  453;    SUliman 

61;  Looney  v,  Adamson,  48  Tex.  619;  v.   Cummins,   13   Ohio,   116.. 


§  246]  SPECIAL   CLASSES   OP  INDIVIDUAL   CONVEYANCES.  269 

§  246.  Release  of  Dower.  The  right  to  dower  is  a  legal  right 
which  cannot  be  barred,  unless  it  has  been  relinquished  in  the  man- 
ner prescribed  bj'  law,3i  and  this  may  be  accomplished  either  by 
a  joinder  of  the  wife  in  a  conveyance  by  the  husband,  or  by  a 
separate  deed  of  relinquishment.^^ 

The  release  which  a  woman  makes  by  joining  with  her  husband 
operates  against  her  only  by  estoppel  and  not  by  grant,^^  and,  in 
the  absence  of  any  express  legislative  requirement  to  the  contrary, 
the  release  will  be  valid  and  effectual  without  mention  of  her  name, 
or  of  the  dower,  in  the  body  of  the  deed.  It  being  only  an  inchoate 
right,  and  not  a  present  estate,  no  words  of  grant  are  necessary.^* 
Nor  is  it  necessary  that  there  should  be  a  consideration  moving  to 
her,  and  though  she  might  insist  on  a  consideration  inuring  solely 
to  herself  as  a  condition  of  such  release,  yet,  failing  to  exact  this, 
her  release  will  be  good  if  supported  by  adequate  consideration 
moving  to  the  husband  alone.^^  Where  a  wife  joins  with  her  hus- 
band in  a  conveyance  of  his  lands,  which  is  properly  executed  by 
her,  is  effectual  and  operative  against  him,  and  is  not  superseded  or 
set  aside  as  against  him  or  his  grantee,  her  inchoate  right  of  dower 
is  thereby  forever  extinguished  for  all  purposes.^®  The  convey- 
ance, however,  must  be  of  the  freehold  or  f ee,^''^  and  such  as  would 
destroy  the  seizin  of  the  husband,  while  the  right  is  of  such  a 
nature,  when  inchoate,  that  it  cannot  be  itself  transferred  by  any 
of  the  instruments  of  conveyance  in  common  use,^*  and  can  be 

31  Davis  V.  McDonald,  42   Ga.  205.  husband,  her  right  of  dower  continues 

' '  A  divoroe  from  the  bonds  of  mat-  notwithstanding    the     divorce.       This 

rimony,"     observes     Mr.     "Washburn,  is    the    rule    in    Illinois    and    several 

"always  defeats  the  right  of  dower,  other  States. 

unless  it  be  saved  by  the  statute  au-  32  Sykes    v.    Sykes,    49    Miss.    190 ; 

thorizing   such   divorce;    for   at   com-  Shepard    v.    Howard,    2    N.    H.    507; 

mon  law,  in  order  to  entitle  a  widow  Thatcher  v.  Rowland,  2  Met.  41. 
to    dower,    she    must    have    been    the  33  Mallony  v.  Horan,  12  Abb.    (N. 

wife  of  the  husband  at  the  time  his  Y.)  Pr.  N.  S.  289;  do.  49  N.  Y.  111. 
decease":  1  Wash.  Real  Prop.,  *196,  34  Johnson  v.   Montgomery,   51   111. 

and  see  also  Bish.  Mar.  &  Div.,  §661;  185;    Frost   v.   Deering,   21  Me.   156; 

2  Black.  Com.  130;  4  Kent  Com.  54;  Sterns  v.  Swift,  8  Pick.  532,  but  com- 

Whitsell    v.    Mills,    6    Ind.    229;    Mc-  pare  McFarland  v,  Febiger,  7   Ohio, 

Craney  v.  McCraney,  5  Iowa,  232.    A  194. 

reasonable  provision  out  of  the  hus-  36  Bailey  v.  Litten,  52  Ala.  282. 

band 's  estate  is  usually  given  in  lieu  36  Elmdorf  v.  Lockwood,  57  N.  Y. 

of   dower.      See   "Chancery   Proceed-  322. 

ings,"  infra.     In   some   States,   how-  37  Sykes  v.   Sykes,   49   Miss.   190. 

ever,  where  the  action  is  brought  by  38  Marvin  v.  Smith,  46  N.  Y.  571. 

the  wife,   for  the   misconduct   of   the 


270  ABSTRACTS   OP   TITLE.  f§  246 

released  only  to  the  owner  of  the  fee,  or  to  some  one  iji  privity  with, 
the  title  by  his  covenants  of  warranty.^® 

The  release  is  often  accomplished  by  a  separate  instrument  of  re- 
linquishment, but  as  this  deed  acts  only  by  way  of  estoppel,  no 
particular  form  of  words  is  necessary,  and  any  apt  words  indicating 
the  intent  will  suffice.*®  The  abstract  of  such  an  instrument  would 
consist  mainly  of  its  recitals,  thus : 


Clio  S.  Greene 

to  \- 


Release  of  Dower.^^ 
Dated  Nov.  6, 1851. 
Recorded  Nov.  7,  1851. 


James  W.  Penfold.  \   ^^  i  tt  n  ,,       '    orm 

'  \    v  ol.     B,     page  379 

"For  a  valuable  consideration,"  releases  all  right  and  claim  of 
dower  in  and  to  a  certain  piece  of  land  in  the  South-West  frac- 
tional quarter  of  Section  19,  Town  2  North,  Range  22,  East  — , 
described  in  a  conveyance  by  "my  husband,"  Patrick  P.  Greene, 
to  said  James  W.  Penfold,  and  recorded  in  Vol.  "B,"  page  124. 

Acknowledged  Nov.  6,  1851. 

Whenever  practicable,  let  the  deed  of  relinquishment  immedi- 
ately follow  the  husband's  deed,  irrespective  of  intervening  eon- 
veyances,  or  if  to  a  grantee  of  the  husband 's  grantee,  then  immedU 
ately  after  his  deed,  the  object  being  to  keep  the  dower  interest 
closely  associated  with  the  fee.  This  method  of  arrangement  will 
be  highly  appreciated  by  counsel. 

§  247.  Joint  Tenancies  and  Tenancies  in  Common.  Where  sev- 
eral persons  purchase  land,  and  advance  the  money  in  equal  pro- 
portions, and  take  a  conveyance  to  themselves  and  their  heirs,  this, 
at  common  law,  is  a  joint  tenancy;  that  is,  a  purchase  by  them 
jointly  of  the  chance  of  survivorship,  which  may  happen  to  the  one 
of  them  as  well  as  the  other. 

The  doctrine  of  survivorship,  however,  is  not  in  accordance  with 
the  genius  of  our  institutions,*^  and  this  incident  of  estates  has 
been  generally  abolished  in  the  United  States,  except  in  a  few  in- 
stances,*^ while  the  extent  of  its  operation  has  everywhere  been 

39  La   Framboise    v.    Crow,    56    111.  leases, ' '    but    this    is   the   name   they 

197;  Reed  v.  Ash,  30  Ark.  775.  have   acquired. 

40Gillilan  v.  Swift,  21  N.  Y.  Sup.  « Burnett      v.      Pratt,      22      Pick. 

Ct.  574.  (Mass.)  557. 

41  Deeds  of  this  character  are  more  43  A  joint  tenancy  in  lands  held  by 

properly    ' '  Surrenders ' '    than    ' '  Ee-  husband  and  wife  has  the  same  char- 


§  248]  SPECIAL    CLASSES   OF   INDIVIDUAL    CONVEYANCES.  271 

veiy  much  restricted.  Conveyances  to  two  or  more  persons  arc 
now  usually  held  to  create  a  tenancy  in  common,  unless  the  lan- 
guage used  clearly  and  manifestly  shows  an  intention  to  create  a 
joint  tenancy,  in  which  event  the  intention  may  be  given  effect. 
But  even  where  this  is  allowed  a  joint  tenant,  by  deed,  may  alienate 
his  undivided  interest  and  his  grantee  will  hold  as  a  tenant  in  com- 
mon with  the  others. 

Where  a  deed  purports  to  create  a  joint  tenancy  the  words  of 
purchase,  grant  and  limitation  all  become  material  and  should  be 
shown  in  the  abstract  with  the  same  fullness  as  in  the  deed.    Thus : 

Grants,  bargains  and  sells  to  said  second  parties  as  joint  tenants 
and  not  as  tenants  in  common,  etc. 

This  formula  is  now  prescribed  by  statute  in  most  of  the  States. 

Tenants  in  common  are  considered  as  solely  and  severally  seized ; 
they  have  several  and  distinct  freeholds,  and  there  is  no  privity 
of  estate  between  them.**  They  may  convey  and  dispose  of  their 
undivided  interests  to  a  stranger  and  the  same  may  be  taken  and 
sold  on  execution,*^  the  purchaser  simply  taking  the  same  position 
in  relation  to  the  co-tenants  as  was  occupied  by  the  grantor  or 
judgment  debtor ;  *^  but  one  tenant  in  common,  owning  an  un- 
divided interest,  cannot  convey  to  a  stranger  a  certain  portion  of 
the  tract  in  common,  and  put  the  purchaser  in  possession  of  the 
portion  conveyed,*'  unless  the  other  tenants  confirm  the  convey- 


ance 


48 


§  248.  Partition  Deeds.  Where  property  is  owned  by  a  num- 
ber of  persons  in  common,  they  may,  by  properly  executed  deeds, 
convey  to  each  other  in  severalty  specific  portions  of  what  was 
formerly  held  jointly,  and  where  the  course  of  title  clearly  shows 
the  origin  of  their  property  rights  and  the  proper  measure  of  their 
title,  the  deeds  so  executed  are  evidences  of  title  of  the  highest 
order.  This  will  be  the  case  where  land  is  held  by  partners,  and 
all  purchasers  by  deed  or  will  in  which  they  are  specifically  desig- 

acteristics    as    to    survivorship,   under  46  Fischer   v.   Eslaman,   68   111.   78. 

the    statutes   of  most   of   the   States,  47  Mattox  v.  Hightshue,  39  Ind.  Do; 

as   existed   between   joint   tenants   at  Shepardson  v.  Rowland,  28  Wis.  108; 

common  law.     See,  Bassler  v.  Eewo-  Hartford,  etc.,  Ore  Co.  v.  Miller,  41 

linski,  130  Wis.  26,  109  N.  W.  130,  7  Conn.     112.       Compare    Barnhart    v. 

LEA     (N.    S.)    701;    Dowling   v.  Cami)hell,  50  Mo.  597. 

Salliotte,'83  Mich.  131,  47  N.  W.  225.  48  Hartford,   etc.,    Ore   Co.    v.    Mil- 

44  Burr  v.  Mueller,  65  111.  258.  Icr,    41    Conn.    112. 

46  Butler  v.  Roys,  25  Mich.  53. 


272  ABSTRACTS   OF   TITLE.  [§-48 

iiated,  but  not  always  wlioii  tlie  elaiin  is  by  descent.  In  the  latter 
event  a  proper  proof  of  beirship  is  essential,  and  unless  this  appears 
the  title  is  not  marketable. 

A  partition  deed  is  mutual,  unless  otboiwisc  specified,  the  inter- 
chanjje  of  interests  forming  the  consideration  In  abstracting 
same,  all  the  material  recitals  should  be  fully  stated,  and  the 
method  of  division  minutely  described.  The  ordinary  covenants 
will  not,  as  a  rule,  be  found,  but  a  mutual  covenant  of  non-claim 
and  warranty  against  their  own  acts,  and  those  claiming  under 
them,  is  usualh'  inserted  in  their  place.  The  deed  should  be  signed 
and  acknowledged  by  both  parties  to  the  transaction  and  is  pre- 
sumably interchangeably  delivered,  A  deed  possessing  these  and 
other  requisites  might  be  shown  in  the  abstract  as  follows: 

Andrew  Barlow^^  ]      Partition  Deed. 

to  and  with  J.     Dated,  etc. 

Charles  Dalton.  |      *  *  •  •  * 

Kecitcs,  that  said,  parties  arc  now  seized  in  fee  simple,  as  tenants 
in  common  of  the  following  described  estate  [describing  same], 
a7id  have  agreed  to  make  a  full,  just  and  equal  partition  and  di- 
vision hetiveen  them,  of  and  in  the  aforesaid  tract,  of  and  accord- 
ing to  their  respective  shares  and  interests  therein,  in  manner  fol- 
lowing [describing  same]. 

And  said  Andrew  Barlow  gives,  grants,  allots,  assigns,  sets  over, 
releases  and  confirms  to  said  Charles  Dalton  the  said  first  described 
piece  or  allotment  of  land,  to  have  and  to  hold  *  *  *  *  *  in 
severalty,  as  his  full  share  therein. 

And  Charles  Dalton  gives,  grants,  etc.  [describing  his  allotment]. 

And  sand  Andrew  Barloiv  covenants  that  said  Charles  Dalton 
shall  freely,  etc.,  hold  and  enjoy  said  first  described  piece  or  allot- 
ment of  land  without  molestation,  interruption,  or  denial  of  him, 
said  Andrew  Barlow,  or  any  person  claiming  hy,  through  or  under 
him.  (And  said  Charles  Dalton  covenants  the  same  in  regard  to 
said  second  described  piece  or  allotment  of  land.) 

Signed  and  acknowledged  hy  both  parties  August  1, 1881. 

§249.  Partnership  Conveyances.  Lands  held  by  several  per- 
sons as  partners,  purchased  by  them  with  partnership  funds  and 
for  partnership  purposes,  are  regarded  in  a  somewhat  different 

49  When     the     course     of     title     is      anoe  in   this  abstract  is  supposed   to 
through    Andrew   Barlow,    simply    re-      be  from  Charles  Dalton. 
verse  the  names.     The  next  convey- 


§  249]  SPECIAL   CLASSES  OF   INDIVIDUAL   CONVEYANCES.  273 

light  from  lands  held  by  an  individual,  or  even  by  tenants  in  com- 
mon in  their  ordinary  relation,  and  for  certain  purposes  may  be 
treated  as  personal  property.  Even  though  the  title  be  taken  in 
the  individual  name  of  one  or  both  partners,  the  land  will,  in  equity, 
be  treated  as  personalty  so  far  as  is  necessary  to  pay  the  debts 
of  the  partnership  or  adjust  the  rights  of  the  partners.  No  other 
or  different  formalities  are  necessary  in  its  acquisition  than  those 
observed  in  the  case  of  ordinary  deeds  of  conveyance.  Yet,  though 
the  conveyance  to  them  is  in  form  such  as  to  make  them  tenants 
in  common,  still,  in  the  absence  of  an  express  agreement,  or  of  cir- 
cumstances showing  an  intent  that  the  estate  conveyed  shall  be 
held  for  their  separate  use,  it  will  be  considered  and  treated  in 
equity  as  vesting  in  their  partnership  capacity,  and  clothed  with 
an  implied  trust  that  they  will  hold  it  until  the  purposes  for 
which  it  was  purchased  shall  be  accomplished,  and  that  it  shall  be 
applied,  if  necessary,  to  the  payment  of  the  partnership  debts. 

Upon  the  dissolution  of  the  partnership  by  the  death  of  one  of 
the  partners,  the  survivor  has  an  equitable  lien  upon  such  real 
estate  for  his  indemnity  against  the  debts  of  the  firm,  and  for 
securing  the  balance  that  may  be  due  to  him  from  the  deceased 
partner  on  settlement  of  the  partnership  accounts  between  them, 
and  the  widow  and  heirs  of  such  deceased  partner  have  no  bene- 
ficial interest  in  such  real  estate  until  the  surviving  partner  is  so 
indemnified.^"  The  legal  title,  it  is  true,  is  cast  upon  the  heirs  as 
in  any  other  case  of  tenancy  in  common,  but  only  becomes  certain 
after  all  the  debts  of  the  firm  are  paid.^^  As  the  widow  and  heirs 
can  claim  only  in  the  right  of  the  husband  and  father,  such  deriva- 
tive right  in  equity  will  extend  no  further  in  behalf  of  the  wife 
and  children  than  that  of  the  partner  from  whom  it  is  derived.*^* 
A  surviving  partner,  in  a  proper  case,  may  sell  the  real  estate  of 
the  firm,  and  though  he  cannot  convey  the  legal  title  which  passed 
to  the  heir  or  devisee  of  the  deceased  partner,  his  sale  will  yet 
invest  the  purchaser  with  the  equitable  ownership  of  all  the  land 
and  the  right  to  compel  a  conveyance  of  the  title  from  the  heir  or 
devisee  in  a  court  of  equity.^^ 

Conveyances  of  partnership  realty  should  be  executed  by  each 
and  all  of  the  partners  in  the  same  manner  as  deeds  by  tenants 

50  2  Sugd.  V.  and  P.  427  (Perkins'  52  Burnside  v.  Merrick,  4  Met.  537. 

notes);    Dyer  v.   Clark,  5  Met.  562;  53  Dupuy   v.   Leavenworth,    17   Cal. 

Cobble  V.  Tomlinson,  50  Ind.  550.  262;    Shanks  v.  Klein,  104  U.  S.   18 

61  Collins  V.  Warren,  29  Miss.  236 ; 
Holland  v.  Fuller,  13  Ind.  195;  Shear- 
er V.  Shearer,  98  Mass.  111. 
Warvelle  Abstracts — 18 


274  ABSTRACTS   OP   TITLE.  [§  249 

in  commou,  and  it  seems  that  a  deed  executed  by  one  partner  only 
in  the  name  of  the  firm  will  convey  only  the  undivided  portion  of 
the  estate  owned  by  such  partner,"  or  rather  only  a  contingent 
right  to  such  part  after  the  debts  are  paid,  while  the  authorities 
are  unanimous  in  declaring  that  a  firm  name,  as  "Jno.  Smith  & 
Co.,"  is  not  a  proper  legal  designation  either  of  grantor  or  grantee, 
and  is  effective  in  either  case  only  for  or  against  the  persons  spe- 
cifically named.^*  But  a  deed  running  to  a  partnership,  the  name 
or  title  of  which  does  not  include  the  name  of  one  of  the  partners, 
while  void  at  law,  may  yet  be  reformed  in  equity  in  conformity 
with  the  facts.''® 

Tn  compiling  the  abstract  of  a  partnership  deed  the  names  of 
the  partners,  whether  grantors  or  grantees,  should  be  set  forth  sub- 
stantially as  in  the  deed  with  full  description  of  the  persons.    As : 

Thomas  Jones  and  William  Smith,  partners  under  the  firm  name, 
and  style  Jones  &  Smith. 

All  material  deviations  from  this  formula  should  be  noted.  The 
execution  and  acknowledgment  will  sometimes  require  special 
mention. 

§  250.  Corporate  Conveyances.  There  are  three  classes  of  cor- 
porations recognized  by  our  laws:  Public  municipal  corporations, 
corporations  technically  private,  but  of  a  quasi  public  character, 
as  railroads,  etc.,  and  corporations  strictly  private,  all  of  whom, 
under  general  or  special  conditions,  have  the  power  to  acquire, 
hold,  and  transmit  the  title  to  land.  Though  regarded  in  law  as 
persons  for  certain  purposes,  they  are  not  entitled  to  the  privileges 
of  citizens,^'  as  guaranteed  by  the  Federal  Constitution,  neither  in 

64  Dillon  V.  Brown,  11  Gray,  179.  full  knowledge,  acquiesced  in  what  he 
Nor  will  it  render  the  other  partners  had  done:  Gibson  v.  Warden,  I4 
liable  on  the  covenants:  Hobson  v.  Wall.  (U.  S.)  244;  Cady  v.  Shepard, 
Porter,  2  Col.  T.  28.  H  Pick.  (Mass.)  400;  Peine  v.  Weber, 

65  Arthur  v.  Webster,  22  Mo.  378;  47  111.  45;  the  difficulties  attending 
Winter  v.  Stock,  29  Cal.  407;  Gossett  such  proof  will  be  readily  seen,  how- 
V.  Kent,  19  Ark.  607;  Barnett  v.  ever,  and  while  by  no  means  insur- 
Lachman,  12  Nev.  361.  A  sealed  in-  niountable  they  are  of  such  a  nature 
strument  (deed  or  other  specialty),  as  to  make  it  almost  imperative  on 
executed  by  one  partner  in  the  name  counsel  to  demand  that  the  title  be 
of  the   firm,  may   be   treated  as  the  assured  by  a  better  deed. 

deed  of  all  the  partners,  upon  proof  66  Spaulding  Mfg.   Co.   v.  Godbold, 

that  prior  to  the  execution  the  others  92    Ark.    63,   121   S.  W.   1063,   29   L. 

had    authorized    him    to    execute    the  TJ.  A.    (N.  S.)   282. 

instrument,  and  after  execution,  with  57  Although  a  corporation  is  not  a 


§  250]  SPECIAIi    CLASSES   OP   INDIVIDUAL    CONVEYANCES.  275 

the  State  of  their  creation,  nor  in  other  States  which  they  may 
enter  for  the  purpose  of  business.  Their  right  to  acquire  and 
transmit  property  is  a  statutory  one  in  the  home  State,  and  in  a 
foreign  State  is  based  upon  the  comity  between  the  States.  In  the 
latter  case  it  is  a  voluntary  act  of  grace  of  the  sovereign  power,^* 
and  is  inadmissible  when  contrary  to  its  policy  or  prejudicial  to 
its  interests.^® 

A  corporation  has  only  such  powers  as  its  charter  gives  it,  either 
expressly,  or  as  incident  to  its  existence,  and  in  determining 
whether  a  given  act  is  within  the  power  of  a  corporation,  it  is  nec- 
essary to  consider,  first,  whether  the  act  falls  within  the  powers 
expressly  enumerated  in  the  charter  or  defined  by  law ;  and  second, 
whether  it  is  necessary  to  the  exercise  of  one  of  the  enumerated 
powers,^®  and  these  apply  both  to  the  acquisition  and  transfer  of 
real  propertJ^^^  Land  which  a  corporation  cannot  hold  in  its  own 
name  it  cannot  hold  in  the  name  of  another,  and  when  a  corporation 
cannot  hold  the  legal  title  to  land,  it  cannot  take  a  beneficial  inter- 
est in  it.^^ 

It  would  seem,  therefore,  that  the  organic  act,  or  some  portion 
thereof,  should  supplement  every  conveyance  purporting  to  pass 
title  to  a  corporation  as  constituting  one  of  the  strongest  assurances 
of  the  validity  of  subsequent  conveyances,^*  but  in  practice  this  is 

citizen  within  the  several  provisions  a  contract;  and,  if  the  charter  and 
of  the  Constitution,  yet  where  rights  valid  statutory  law  are  silent  upon 
of  action  are  to  be  enforced  by  or  the  subject,  whether  the  power  to 
against  a  corporation,  it  will  be  con-  make  such  a  contract  may  not  be 
sidered  as  a  citizen  of  the  State  where  implied  on  the  part  of  the  corpora- 
it  was  created:  Eailway  Co.  v.  Whit-  tion  as  directly  or  incidentally  nec- 
ton,  13  Wall.  270.  This,  however,  essary  to  enable  it  to  fulfill  the  pur- 
applies  more  particularly  to  eontro-  pose  of  its  existence,  or  whether  the 
versies  in  the  Federal  Courts.  contract,   is   entirely  foreign  to   that 

68 Ducat   V.    Chicago,   48    111.    172;  purpose:     Weckler   v.    Bank,   42   Md. 

Ins.    Co.    v.    Commonwealth,    5    Bush  581;   Watson  v.  Water  Co.,  36  N,  J. 

(Ky.),  68;   State  v.  Fosdick,  21  La.  L.  195. 

Ann.  434.  ^^  Franco-Texan   Land    Co.    v.    Mc- 

59  Carroll  v.  East  St.  Louis,  67  111.  Cormiek,   85    Tex.   416. 

5g8^  62  Coleman    v.    R.    R.    Co.,   49    Cal. 

eoVandall  v.  Dock  Co.,  40  Cal.  83;  517. 

Pullan    V.    R.    R.    Co.,    4    Biss.    35;  63  At  the  present  time  corporations 

Weckler  v.  Bank,  42  Md.  581;   Mat-  are     organized    under    general    laws 

thews   V.    Skinner,    62    Mo.    329.      In  which  define  their  powers  and  capaci- 

determining    whether    a    corporation  ties.     Hence,   in  the  case  of  modern 

can    make    a    particular    contract,    it  corporations  no  difficulty  will  usually 

must  be  considered  whether  its  char-  be   experienced   in   determining   ques- 

ter,  or  some  statute  binding  upon  it,  tions  of  capacity.     The  suggestion  of 

forbids   or  permits  it  to  make  such  the  text  applies  more  particularly  to 


276  ABSTRACTS    OP   TITLE.  [§  250 

seldom  done,  though  the  authority  to  make  a  deed  frequently  con- 
stitutes one  of  the  recitals  in  conveyances  from  corporations.  As 
corporations  are  now  almost  universally  organized  under  general 
laws,  -svliicli  define  their  powers  in  this  respect,^*  the  matter  pre- 
sents fewer  intricacies  than  formerly,  yet  as  a  rule,  whenever  the 
title  under  examination  passes  through  a  corporation,  and  the 
deeds  furnish  no  internal  evidence  to  demonstrate  their  validity,  a 
requisition  should  be  made  by  the  examining  counsel  for  such  in- 
formation as,  in  his  opinion,  may  be  necessary  to  show  same.  This 
question  will  often  arise  in  the  case  of  foreign  corporations. 

§  251.  Statutes  of  Mortmain.  The  common  law  right  of  cor- 
porations to  take  and  hold  real  estate  has  been  restrained  in  Eng- 
land from  an  early  daj',  by  a  series  of  laws  called  statutes  of  mort- 
main, which  were  passed  to  repress  the  grasping  spirit  of  the 
church  which,  it  was  claimed,  was  absorbing  in  perpetuity  the  best 
lands  in  the  kingdom.^^  "They  were  called  statutes  of  mortmain," 
observes  an  eminent  writer,  "because  designed  to  prevent  the  hold- 
ing of  lands  by  the  dead  clutch  of  ecclesiastical  corporations,  which 
in  early  times  were  composed  of  members  dead  in  law,  and  in  whose 
possession  property  was  forever  dead  and  unproductive  to  the  feu- 
dal superior  and  the  public. ' '  ^^  This  system  of  restraint,  though 
originally  confined  to  religious  corporations,  was  subsequently  ex- 
tended to  civil  or  lay  corporations. 

The  English  statutes  of  mortmain,  though  they  have  been  held 
in  some  of  the  States  to  be  the  law,  so  far  as  applicable  to  present 
political  conditions,  have  not  been  re-enacted  in  this  country' ;  yet 
the  policy  has  been  retained  and  is  manifest  in  the  general  and 
special  enactments  of  every  State.  To  prevent  monopolies,  and  to 
confine  the  action  of  incorporated  companies  strictly  within  their 
proper  sphere,  the  acts  incorporating  them  almost  invariably  limit 

corporations  organized  during  the  corporations.  The  law  and  the  arti- 
period  when  special  legislation  of  this  cles  so  filed,  taken  together,  are  con- 
kind  was  permitted.  In  the  case  of  sidered  in  the  nature  of  a  grant  from 
domestic  corporations  the  published  the  State,  and  constitute  the  charter 
volumes  of  private  and  local  laws  of  the  company:  Abbott  v.  Smelting 
will  supply  the  desired  information.  Co.,  4  Neb.  416;  Mining  Co.  v.  Herki- 
In  case  of  foreign  corporations  a  mer,  46  Ind.  142;  "Whetstone  v.  Ot- 
requisition  for  further  information  tawa  University,  13  Kan.  320;  Hunt 
will  often  become  necessary.  v.  Bridge  Co.,  11  Kan.  412;  State  v. 

64  The   filing   of    articles   of   incor-  Leflingwell,  54  Mo.  458. 
poration  in  one  of  the  county  oflfices  66  1  Black  Com.  479. 

and   with    the   Secretary   of    State   is  66  Ang.    &   Ames   on    Corp.,    §148; 

now  the  usual  manner  of  organizing  3   Co.   Lit.   2  b.;    1   Black  Com.  479. 


§  253]  SPECIAL    CLASSES   OF   INDIVIDUAL    CONVEYANCES.  277 

not  only  the  amount  of  property  they  shall  hold,  but  frequently 
prescribe  in  what  it  shall  consist,  the  purposes  for  which  it  shall 
alone  be  purchased  and  held,  and  the  mode  in  which  it  shall  be 
applied  to  effect  those  purposes.  Special  legislation  for  corpora- 
tions, in  most  of  the  States,  has  been  abolished,  and  companies  are 
incorporated  under  general  laws  of  uniform  application,  but  the 
policy  above  outlined  is  still  vigorously  maintained. 

§  252.  Power  of  Acquisition — User.  There  is  a  broad  distinc- 
tion between  the  power  of  acquisition  of  property  and  the  use  to 
which  it  is  to  be  applied,  and  the  effect  of  the  distinction  upon  the 
rights  of  third  persons  is  equally  marked.  Where  the  charter 
of  a  corporation,  or  the  general  law  under  which  it  is  organized, 
prohibits  the  purchase  of  lands  for  any  purpose,  a  deed  to  it  would 
be  an  utter  nullity,  as  its  capacity  to  take  is  determined  by  the 
instrument  or  act  which  gave  it  existence ;  ^'  but,  having  the  power 
to  purchase  and  take,  though  for  a  specific  purpose  only,  it  be- 
comes fully  invested  with  title  by  a  deed  properly  executed,  even 
though  the  property  be  acquired  and  used  for  a  purpose  forbidden 
by  the  organic  act.^^  As  a  rule,  deeds  to  and  from  corporations 
are  effective  to  convey  the  title  to  the  lands  therein  described,  and 
titles  so  derived  cannot  be  impeached  collaterally,  nor  their  validity 
be  questioned  by  third  persons,  on  the  ground  that  the  transaction 
was  beyond  the  corporate  power;  for  where  a  corporation  exceeds 
its  powers,  the  remedy  is  by  a  direct  action  in  the  name  of  the 
State,^®  which  alone  can  interfere.'**  Parties  dealing  with  cor- 
porations are  chargeable,  however,  with  notice  of  the  limitations 
imposed  by  the  charter  upon  their  powers.'^ 

§253.  Municipal  Corporations.  Municipal  corporations  are 
creatures  of  the  statute,  and  can  exercise  only  such  powers  as  are 

67Leazure   v.   Hillegas,   7   S.   &  E.  private     suitors    on    conveyances    or 

(Pa.)    319.     Yet  whether  real  estate  other  unauthorized  acts  of  a  corpora 

has   been   acquired   in   excess    of   the  tion  is  where  such  attack  is  author 

corporate    powers    to    take    and    hold  ized  by  express  legislative  permission 

can  not  be  made  a  question  by  any  See,  Martindale  v.  R.  R.  Co.,  60  Mo 

party,    except    the    State,   who    alone  508;  Bank  v,  Mathews,  98  U.  S.  621 

must  assert  her  policy  in  that  regard :  70  DeCamp    v.    Dobbins,    29    N.    J, 

Alexander  v.  Tolleston  Club,  110  111.  Eq.    36;    Hayward    v.    Davidson,    41 

65;   Baker  v.  Neff,  73  Ind.  68.  Ind.  214.     The  doctrine  of  ultra  vires 

68  Hough  V.   Land  Co.,  73  111.   23.  is  generally  applied  only  to  such  con- 

69  Smith  v.  Sheeley,  12  Wall.  358;  tracts  as  remain  wholly  executory: 
Kelly  V.  Transportation  Co.,  3  Oreg.  Thompson  v.  Lambart,  44  Iowa,  239. 
189;  Conn.,  etc.,  Ins.  Co.  v.  Smith,  71  Franklin  Co.  v.  Lewiston  Inst. 
117  Mo.  261.     The  only  exception  to  for  Savings,  68  Me.  43. 

the    rule    which    prohibits    attack   by 


278  ABSTRACTS   OP   TITLE,  [§  253 

expressly  conferred,  or  such  as  arise  by  implication  from  general 
powers  granted.  Where  the  charter  empowers  a  municipal  cor- 
poration to  buy  and  hold  real  property,  it  must  be  understood  to 
be  purchases  made  in  the  ordinary  way,  and  for  corporate  pur- 
poses only ;  and  a  grant  to  purchase  for  particular  purposes  would 
seem  to  be  a  limitation  on  the  power  of  such  corporations,  and 
to  exclude,  by  necessary  implication,  all  purchases  for  mere  spec- 
ulation and  profit.  ' '  Power  to  purchase  for  speculative  purposes, ' ' 
says  Scott,  J.,  "is  not  among  the  usual  powers  bestowed  on  mu- 
nicipal corporations,  nor  does  such  power  arise,  by  implication, 
from  any  of  the  ordinary  powers  conferred  on  such  corpora- 
tions."'« 

Municipal  corporations,  under  a  general  grant  of  power  to  buy 
and  hold  land,  may  purchase,  within  the  corporate  limits,  such 
property  as  may  be  necessary  for  corporate  purposes,  and  may 
even  buy  and  hold  land  beyond  the  corporate  limits,  for  the  loca- 
tion of  cemeteries,  pest  houses,  drainage,  etc.,'^  but  in  the  absence 
of  any  enabling  statute,  cannot  become  the  purchaser  of  lands  or 
lots  at  a  tax  sale,  and  on  compliance  with  the  statute  in  that 
regard  obtain  a  deed  that  will  invest  such  corporations  with  the 
title  to  the  property.'''* 

Deeds  by  a  municipal  corporation  stand  upon  a  somewhat  dif- 
ferent footing  from  private  corporations  generally,  and  for  their 
proper  proof  it  is  necessary  that  the  authority  for  their  execution 
should  also  appear.'''^  This  authorization  will  usually  take  the  form 
of  a  resolution  by  the  municipal  legislature.  The  resolution  should 
always  appear  in  the  abstract  in  connection  with  the  deed  made 
pursuant  thereto.    Practical  examples  will  be  given  further  on. 

§  254.  Conveyances  to  Corporations.  By  common  law,  and  in 
the  absence  of  statutory  prohibitions,  corporations  aggregate,'''^  in 

72  City  of  Champaign  v.  Harmon,  75  Ward  v.  Lumber  Co.,  70  "Wis. 
98    111.    491;    and    see    2    DiU.    Mun.      445. 

Corp.,   §  433.  '^6  Corporations    sole,    though    com- 

73  2  Dill.  Mun.  Corp.,  §  435.  The  paratively  common  in  England,  are 
general  rule  is  that  municipal  corpo-  seldom  created  in  the  United  States. 
rations  can  not  purchase  or  hold  real  The  general  laws  for  the  organiza- 
estate  beyond  their  territorial  limits,  tion  of  corporations  all  provide  for 
unless  this  power  is  conferred  by  the  a  number  of  corporators.  But,  uh- 
legislature:  2  Dill.  Mun.  Corp.,  §435;  dcr  former  laws  instances  of  sole 
and  see  Denton  v.  Jackson,  2  Johns.  corporations  will  be  found.  Thus, 
Ch.  336;  Chambers  v.  St.  Louis,  29  "The  Catholic  Bishop  of  Chicago" 
Mo.  543.  is  a  corporation   sole  by  virtue  of  a 

74  City   of   Champaign    v.    Harmon,  special  act  of  Legislature." 
98  111.  491. 


§  255]  SPECIAL    CLASSES   OF   INDIVIDUAL    CONVEYANCES.  279 

whatever  manner  created,  can  take,  like  natural  persons,  by  every 
method  of  conveyance  known  to  the  law."  No  particular  words 
of  grant  are  necessary,  other  than  those  in  common  use  in  convey- 
ances to  natural  persons,  though  it  is  usual  to  insert,  as  a  word  of 
limitation,  the  term  "successors."  The  word  is  not  necessary, 
however,  to  convey  a  fee,  independent  of  the  statute  which  provides 
for  a  fee,  for,  admitting  that  such  a  grant  is  strictly  only  a  life 
estate,  yet  as  a  corporation,  unless  of  limited  duration,  never  dies, 
such  estate  for  life  is  perpetual,  or  an  equivalent  to  a  fee  simple, 
and  therefore  the  law  allows  it  to  be  one.'* 

As  between  the  parties,  where  the  corporation  is  authorized  by 
its  charter  or  the  law  under  which  it  is  organized,  to  purchase 
land,  receive  conveyances  thereof,  and  hold  title  to  the  same,  but  is 
prohibited  from  purchasing  and  holding  for  any  other  than  a 
prescribed  purpose,  the  question  of  the  validity  of  the  title  cpn- 
veyed  cannot  be  inquired  into.  The  title  vests  in  the  corporation 
by  a  deed  duly  executed,  and  the  question  as  to  whether  the  cor- 
poration has  exceeded  its  power  can  be  raised  only  by  the  State  or 
by  a  stockholder.'^  A  distinction  must,  however,  be  observed  be- 
tween the  power  of  acquisition  and  the  use  to  which  the  land  is  to 
be  applied,  but,  as  a  general  rule,  a  proper  and  legitimate  purpose 
is  always  presumed  on  the  part  of  a  corporation  in  accepting  a  con- 
veyance of  land.*** 

§  255.  Conveyances  by  Corporations.  All  private  corporations 
have  an  incidental  right  to  alien  or  dispose  of  their  lands,  without 
limitation  as  to  objects,  unless  restrained  by  the  act  of  incorpora- 
tion, or  by  statute ;  and  the  power  to  mortgage,  when  not  expressly 
given  or  denied,  will  be  regarded  as  an  incident  to  the  power  to 
acquire  and  hold  land,  and  to  make  contracts  concerning  same.*^ 
In  general,  they  convey  their  land  in  the  same  manner  as  individ- 
uals, the  laws  relating  to  the  transfer  of  property  being  equally 
applicable  to  both,82  ^^d  the  only  features  that  particularly  dis- 
tinguish this  class  of  conveyances  from  individual  deeds  are  in 
the  execution  and  acknowledgment. 

The  orderly  parts  of  the  deed  follow  closely  the  ordinary  deeds 

77  Am.  Bible  Society  v.  Sherwood,  Smith  v.  Sheclcy,  12  Wall.  358; 
4  Abb.  (N.  Y.)  App.  227;  Ang.  &  Baker  v.  Neff,  73  Ind.  68;  Kelly  v. 
Ames  on  Corp.  140.  Transportation  Co.,  3  Orcg.  189. 

78  Ang.   &  Ames   on   Corp.    141;    2  80  Life  Ins.  Co.  v.  Smith,  117  Mo. 

261. 


Blk.    Com.    109;    Overseers   v.    Sears, 
2   Pick.    122;    Congregational   Socie- 
j  V.  Stark,  34  Vt.  243. 
79  Hough  V.  Land  Co.,  73  111.  23;  82  Ang.  &  Ames  on  Corp.  §193 


22   Pick.    122 ;    Congregational   Socie-  81  Agricultural  Society  v.  Paddock, 

ty  V.  Stark,  34  Vt.  243.  «0  111.  263. 


280  ABSTRACTS   OP   TITLE.  [§  255 

in  common  use,  the  full  name  of  the  corporation  appearing  in  the 
premises  as  the  grantor,  while  the  bodj'^  of  the  deed  frequently 
contains  a  recital  showing  the  inducement  of  the  instrument  and 
the  authority  for  its  issuance.  The  execution,  in  most  of  the  States, 
is  regulated  by  express  statute  which  provides  for  a  specific  method 
of  signing  and  sealing  and  sometimes  for  acknoAvledgment  as  well. 
The  seal  is  usually  indispensable  to  a  perfect  execution  and  its 
absence  is  a  defect  that  calls  for  notice.  "A  corporation,"  says 
Blackstone,  "being  an  invisible  body,  cannot  manifest  its  intentions 
.by  any  personal  act  or  discourse;  it  therefore  acts  and  speaks  by 
its  common  seal.  For,  though  the  particular  members  may  express 
their  private  consents  to  any  act,  by  words  or  signing  their  names, 
yet  this  does  not  bind  the  corporation ;  it  is  the  fixing  of  the  seal, 
and  that  only,  which  unites  the  several  assents  of  the  individuals 
who  compose  the  community,  and  makes  one  joint  assent  of  the 
whole."  ®^  This  is  now  true,  however,  only  in  a  very  limited  sense, 
as  coi-porations  do  contract  by  officers  and  agents  without  the  use 
of  the  seal,  but  in  the  conveyance  of  land  the  rule  is  still  main- 
tained, and  the  deed  of  a  corporation  without  the  corporate  seal 
is  inadmissible  in  evidence  unless  the  authority  of  the  officers  ex- 
ecuting it  is  shown.  A  mere  recital  of  such  authority  in  the  deed 
is  not  sufficient  for  this  purpose.^*  The  seal  must  be  the  common 
seal  of  the  body,  either  originally  or  by  adoption,  and  must  be 
affixed  bj'  competent  authority.®^ 

Whatever  light  the  instrument  sheds  upon  itself  by  way  of  re- 
cital or  otherwise  should  always  be  stated,  either  literally  or  with 
little  deviation  from  the  original,  the  literal  transcriptions  being 
indicated  by  quotation  marks.  Here  follows  an  example  of  an 
abstract  of  a  simple  deed  by  a  corporation : 

1  Quitclaim  deed. 

South     Park     Commissioners,  |  Dated  Avg.  1,  1880. 

a  public  corporation  exist-  j  Recorded  Aug.  10,  1880. 

ing  under  and  by  virtue  of  j  Book  120,  page  540. 

the  laws  of  Illinois,                  \-  Consideration  $100.00. 

to                           I  Conveys  and  quitclaims  all  in- 

William  Thomas.             |  tercst  said  corporation  acquired 

Doc.  128,288.                 j  or  derived  under,  through,  or  by 

J  virtue  of  a  certain  tax  sale  deed 

to  said  corporation  by  the  County  Clerk  of  Cook  County,  Illinois, 

83 1  Bl.  Com.  475.  572.     The  seal  is  itself  prima  facie 

84  Gashwiler  v.  Willis,  33  Cal.  11.        evidence  that  it  was  affixed  by  proper 
86  Jackson    v.    Campbell,    5    Wend.       authority:  Solomon's  Lodge  v.  Mont- 


§256] 


SPECIAL   CLASSES  OP  INDIVIDUAL   CONVEYANCES. 


281 


dated  June  1,  1879,  and  recorded  in  Book  85  of  Records,  page  640, 
in  and  to  the  following  described  real  estate,  situated  in  said  Cook 
Cmmty,  to  wit:  [Here  follows  the  description.]  Said  interest 
acquired  heing  a  tax  claim  covering  the  1st,  2d,  3d,  4th,  5th,  6th, 
7th  and  8th  installments  of  the  South  Park  Special  Assessment. 

"In  witness  whereof,  said  corportaion  hath  caused  this  indenture 
to  be  signed  by  its  President  and  attested  by  its  Secretary,  and  its 
official  seal  to  be  hereto  affixed." 


Signed : 

"J.B.  WALSH,  President. 
Attest: 

"H.  W.  HARMON,  Secretary." 


Acknowledged  by  said  President  and  Secretary  as  the  free  and 
voluntary  act  of  said  South  Park  Commissioners. 
Certificate  of  acknowledgment  dated  Aug.  1,  1880. 

§  256.  Continued — Execution — Acknowledgment.  In  the  pre- 
ceding example,  it  will  be  observed  that  the  execution  and  accom- 
panying recitals  are  quoted,  and  this  practice  is  recommended  as 
being  conducive  of  greater  certainty,  and  as  presenting  an  answer 
to  every  question  that  can  arise.  The  mode  of  execution  of  cor- 
porate conveyances  is  usually  prescribed  by  statute,  and  ordinarily 
consists  of  the  signature  of  the  president  or  corresponding  officer 
who  subscribes  as  such  officer,  and  the  affixing  of  the  corporate  seal. 
In  addition  to  this,  even  when  not  required  by  statute,  it  is  cus- 
tomary for  the  secretary  or  person  having  the  custody  of  the  seal 
to  attest  the  same  under  his  hand.  Whatever  may  be  the  law,  a  full 
exemplification  of  the  execution  will  present  all  the  questions  that 
can  arise  under  it.  The  seal,  when  shown  of  record,  should  be 
copied  or  described,  and  its  absence  specifically  noted  as  a  serious 
defect.  It  does  not  seem,  however,  that  it  is  necessary  that  the 
record  should  contain  a  fac  simile  of  the  corporate  seal.^^ 

The  seal  of  a  corporation,  when  affixed  to  any  deed  or  contract 
by  proper  authority,*'''  is  not  distinguishable  in  its  legal  effect  from 


mallin,  58  Ga,  547;  Bank  v.  Kort- 
right,  22  Wend.  348;  Reed  v.  Bradley, 
17  111.  321;  Flint  v.  Clinton  Co.,  12 
N.  H.  434. 

86  See,    Anthony    v.    Bank,    93    111. 
225. 


87  When  the  deed  is  shown  to  have 
been  duly  executed  by  one  having 
authority,  proof  that  the  seal  affixed 
is  the  corporate  seal  is  unnecessary; 
Phillips  V.  Coffee,  17  111.  154. 


282  ABSTRACTS   OF   TITLE.  [§  256 

that  of  an  individual,  and  renders  the  instrument  a  specialty.** 
It  is  the  highest  evidence  of  assent,  and  Avas  formerly  the  only 
requisite  necessary  to  bind  the  corporation.  In  some  of  the  States, 
the  deed  must  be  signed  with  tlie  name  as  well  as  sealed  with  the 
seal  of  the  corporation.*^ 

Where  the  execution  conforms  to  the  law  of  the  State  where  the 
land  conveyed  is  situate,  no  questions  will  probably  arise.  Where 
it  does  not  so  conform,  recourse  must  be  had  by  counsel,  in  the 
absence  of  other  evidences  of  conformity,  to  the  law  of  the  State 
where  the  conveyance  Avas  executed,  or  where  the  "home  office"  is 
located.  Appended  matter,  showing  authority,  conformity,  etc., 
should  as  a  rule,  be  fully  presented.  Where  several  officers  sign, 
an  acknowledgment  by  one  only  in  behalf  of  the  corporation  is 
sufficient.^**  But,  in  any  case,  the  persons  appearing  must  ac- 
knowledge as  officers  and  not  as  individuals;  failing  in  this  the 
acknowledgment  will  be  fatally  defective.^^ 

In  the  absence  of  statutory  provisions  to  the  contrary,  where 
a  deed,  purporting  to  be  the  deed  of  the  corporation,  is  signed 
by  its  officers,  as  such  officers,  and  has  the  corporate  seal  affixed, 
it  is  admissible  in  evidence  as  a  deed  of  the  corporation,  and  is 
itself  presumptive  evidence  of  the  regular  and  duly  authorized 
execution  of  same.^^  The  following  is  a  good  example  of  an  ab- 
stract of  execution,  acknowledgment,  and  appendant  matter : 

"In  witness  whereof  the  said  Union  Mutual  Life  Insurance 
Company  hath  caused  its  Corporate  Seal  to  he  hereunto  affixed, 
and  these  presents  to  he  suhscribed  hy  John  E.  De  Witt,  its  Pres- 

88  Clark  V.  Manf .  Co.  of  Benton,  who  has  affixed  the  common  seal  to 
15  Wend.  256;  Benoist  v.  Carondelet,  the  same,  stands  also  in  the  character 
8  Mo.  250.  In  the  absence  of  the  of  a  subscribing  witness  to  the  exccu- 
common  seal,  or  of  proofs  of  facts  tion  of  the  deed  by  the  corporation; 
whence  the  authority  of  the  officers  and  may  be  examined  by  the  officer 
of  a  corporation  to  execute  a  con-  taking  the  proof  to  prove  that  the 
veyance  may  be  inferred,  such  au-  seal  affixed  by  him  is  the  common 
thority  can  only  be  established  by  seal  of  the  corporation,  whose  deed 
resolution  of  the  directors  or  trus-  tho  couvcyan.'c  or  instrument  to  which 
tees  entered  in  the  proper  book  of  the  it  is  affixed  purports  to  be."  Wil- 
corporation:  Southern  Cal.  Colony  lard's  Conveyancing,  393;  Lovett  v. 
Assoc.  V.  Bustamente,  52  Cal.  192.  Steam  Mill  Association,  6  Paige,  60; 

89  Ishani    v.    Bennington    Iron    Co.,  Johnson  v.  Bush,  3  Barb.  Ch.  207. 

19  Vt.  251.  ^^  Bernhart    v.    Brown,    122    N.    C. 

90  Merrill  v.  Montgomery,  25  Mich.       587. 

73.     "The  officer  of  the  corporation  92  Miners'  Ditch  Co.  v.   Zellerbach, 

intrusted   with   its   common  seal,   and  37   Cal.    543;    Sawyer   v.   Cox,   63   111. 

who  subscribes  his  name  to  the  deed  130;    Solomon's    Lodge    v.    Montmal- 

as  the  evidence  that  he  is  the  person  lin,  58  Ga.  547. 


§256] 


SPECIAL   CLASSES  OF  INDIVIDUAL   CONVEYANCES. 


283 


ident,  duly  authorized  hy  vote  of  the  Finance  Committee  of  the 
Board  of  Directors  of  said  Corporation,^^  a  certificate  of  which  is 
hereto  attached,"  etc. 

Signed: 

''UNION  MUTUAL  LIFE  IN- 
SURANCE  COMPANY, 

''By  JOHN  E.  De  WITT,^ 
President." 

Acknowledged  hy  said  President  as  his  free  and  voluntary  act 
and  deed,  and  as  the  act  and  deed  of  said  Company. 
Certificate  of  acknowledgment  dated  August  10,  1883. 


APPENDED  IS 

Extract  from  Article  9  of  the  By-Laws  of  the  Union  Mutual  Life 
Insurance  Company: 

"The  Finance  Committee  may  authorize  the  foreclosure  of 
mortgages  in  any  manner  provided  hy  the  laws  of  the  State  or 
country  in  which  the  mortgage  property  is  situated  and  may  direct 
the  sale  of  any  real  estate  held  hy  the  Company,  or  in  trust  for  the 
Company;  and  when  they  shall  direct  any  such  sale  of  prop- 
erty held  hy  the  Company,  the  President,  and  in  his  absence  the 
Vice  President,  is  authorized  to  execute  the  proper  instrument  of 
conveyance." 


Attest: 


JAMES  SIMMONS, 

Secretary. 


At  a  meeting  of  the  Finance  Committee  of  the  Board  of  Di- 
rectors of  the  Union  Mutual  Life  Insurance  Company,  held  on 


93  A  purchaser  of  land  from  a  cor- 
poration, being  a  stranger  to  the  cor- 
poration, is  not  bound  to  know  that 
there  is  a  by-law  of  the  company  re- 
quiring an  order  of  the  board  of  di- 
rectors to  authorize  a  sale  of  land 
owned  by  the  company.  The  rule  is 
the  same  where  a  purchaser  receives 


a  bond  from  a  corporation  for  a  deed 
for  land  purchased,  and  ho  will  be 
entitled  to  the  deed  according  to  the 
provisions  of  the  bond,  notwithstand- 
ing there  was  no  order  of  the  board 
of  direi'tors  authorizing  the  sale: 
Wait  V.  Smith,  92  111.  385. 

94  It  is  presumed,  when  the  common 


284  ABSTRACTS   OP   TITLE.  [§  256 

AfKjusf  10,  J6S3,  ihc  jorcgoing  Deed  was  approved,  and  the  Pres- 
ident directed  to  execute,  acknowledge  and  deliver  the  same. 
Attest:  JAMES  SIMMONS, 

Secretary  of  the  Finance  Committee. 

As  a  general  rule  the  president  of  a  corporation  has  power  to 
bind  it,  within  the  scope  of  its  powers,  and  as  its  rules  and  by- 
laws are  not  usually  open  to  public  inspection,  particularly  where 
the  home  office  is  in  a  distant  State,  such  rules  and  by-laws  can 
have  no  appreciable  effect  upon  persons  having  no  knowledge  of 
their  existence;  and  notwithstanding  such  officer  may  have  no 
power  to  make  contracts  or  conveyances  under  the  private  rules 
and  regulations  of  the  corporation,  yet,  as  to  strangers,  without 
notice,  it  will  be  estopped  to  deny  the  power  of  its  officers  to  per- 
form the  specific  acts.^^  As  a  matter  of  safety,  however,  where 
no  authority  specifically  appears  from  the  instrument  itself  or 
matter  appended  thereto,  a  requisition  should  be  made  for  further 
information. 

Sometimes,  Avhere  the  testatum  is  silent,  the  acknowledgment 
will  contain  a  recital  of  authority.  In  such  cases  copy  the  recital. 
Thus: 

Acknowledged  *  *  *  hy  Albert  Jones,  as  President  of  the 
Chicago  and  Western  Railway  Co.,  as  the  free  and  voluntary  act 
of  said  Company,  "pursuant  to  authority  given  hy  the  Board  of 
Directors." 

§257.  Acts  of  Officers  in  Excess  of  Charter  Powers.  The  ob- 
servations of  the  foregoing  section  suggest  another  thought  before 
leaving  this  branch  of  our  subject.  It  must  always  be  borne  in 
mind,  in  construing  deeds  of  the  character  now  under  considera- 
tion, that  a  corporation  is  not  vested  with  the  capacities  of  a  nat- 
ural person,  but  only  such  as  its  charter  confers,®^  and  that  acts 
done  in  excess  of  the  power  so  conferred  are  void,  in  the  sense 
that  they  can  have  no  effect  to  divest  the  corporation  of  any  right 
in  or  to  property  belonging  to  it.®''  Every  person  attempting  to 
contract  with  a  corporation  must,  at  his  peril,  take  notice  of  the 

seal  of  a  corporation  is  afl&xed  to  an  96  Life   Ins.   Co.  v.  White,   106  111. 

instrument     together    with     the     sig-  67. 

natures    of    the    proper    oflScers,    that  96  Davis    v.    R,    E.    Co.,    131    Mass. 

such  officers  did  not  exceed  their  au-  259. 

thority:  Kansas  v.  R.  R.  Co.,  77  Mo.  97  Martin  v.  E.  R.  Co.,  8  Fla.  370; 

185;     Mullanphv    Savings     Bank     v.  Franco-Texan  Land  Co.  v.  McConnick, 

Schott,  135  111.   655.  85   Tex.  416. 


§  258]  SPECIAL    CLASSES   OF   INDIVIDUAL    CONVEYANCES.  285 

legal  limits  of  its  capacity  and  of  the  powers  conferred  upon  it  by 
its  charter.^*  If  the  officers  of  a  corporation  have  no  power  un- 
der the  charter  to  make  conveyances,  or,  having  such  power,  can 
only  convey  for  special  purposes,  a  deed  showing  such  excess  of 
power  would  not  be  binding  on  the  corporation  and  all  persons 
claiming  through  or  under  such  deed  would  be  affected  with  notice 
of  every  fact  therein  recited.^^ 

But,  if  a  corporation  has  power  to  make  conveyances  for  a  stated 
purpose,  and  its  officers  execute  a  deed  reciting  compliance  with 
its  charter  powers,  then,  notwithstanding  the  recital  may  be  false, 
a  person  ignorant  of  its  falsity  would  probably  take  as  an  innocent 
purchaser  and  be  protected.  In  such  a  case,  as  the  conveyance 
would  be  within  the  apparent  power  of  the  agents  of  the  corpora- 
tion the  person  receiving  such  deed,  or  one  claiming  under  him, 
would  be  entitled  to  rely  upon  the  express,  or  even  the  implied, 
representation  that  the  facts  existed  which  empowered  them  to 
execute  the  deed.^ 

§  258.  Record  of  Seal.  In  all  the  examples  given  in  this  chapter, 
the  seals  have  been  shown  as  they  were  appended  to  the  original 
instruments,  but  not  infrequently  the  defects  of  the  record  will 
render  this  impossible.  Where  the  seal  has  not  been  recorded, 
but  only  alluded  to,  the  suggestion,  as  made  upon  the  record, 
should  be  shown  as  it  appears,  thus: 

Seal  is  recorded,  '^Corporate  Seal." 

If  the  record  describes  the  seal  such  description  should  be  copied 
verbatim.  Where  the  seal  is  substantially  shown  on  the  record  it 
should  be  reproduced  in  the  abstract  but  literal  conformity  to  shape 
and  arrangement  will  not  usually  be  necessary.  The  following 
will  suffice  for  an  abstract  of  an  ordinary  corporate  execution : 


Chicago 

&  Western 

Railway  Co. 


Signed: 

CHICAGO  d-  WESTERN  RAILWAY  CO. 
By  ALBERT  JONES,  President. 

Attest: 

JOHN  B.  31  ORG  AN,  Secretary. 


98  Elevator  Co.  v.  E.  R.  Co.,  85  cash  but  exchanged  them  for  per- 
Tenn    703.  sonal     property,     notes     and     bonds, 

99  Jemison  v.  Bank,  122  N.  Y.  135;  which  fact  was  recited  in  the  deed. 
Franco-Texan  Land  Co.  v.  McCor-  Held,  that  the  deed  was  void  upon 
mick,  85  Tex.  416.     In  this  case  the  its  face. 

corporation    had    power    to  sell    its  1  Franco-Texan    Land    Co.    v.    Mc- 

lands  for  cash.     It  did  not  sell   for  Cormick,  85  Tex.  416. 


286  ABSTRACTS   OF   TITLE,  [§258 

The  person  taking  the  acknowledgment  is  bound  to  know  the 
identity  of  the  officers  acknowledging  and  must  so  certify.  He 
is  not  obliged,  however,  to  certify  the  genuineness  of  the  corporate 
seal.  But  sometimes,  in  certificates  of  this  kind,  he  does  so  certify 
and  when  such  is  the  case  a  brief  allusion  to  such  certification 
should  be  made.     Thus: 

Certificate  of  acknowledgment  hy  Chas.  Sampson,  Notary  Pub- 
lic, who  certifies  that  he  knows  the  seal  affixed  to  said  deed  to  he 
the  corporate  seal  of  said  Chicago  and  Western  Railivay  Co. 

Should  the  record  merely  disclose  a  scrawl,  then  the  scrawl  may 
be  shown  with  accompanying  words,  if  any.  In  recording  an  in- 
strument purporting  to  be  executed  by  a  corporation,  in  the  ab- 
sence of  statutory  requirements  to  the  contrary,  the  corporate  seal, 
if  attached  thereto,  may,  it  seems,  be  represented  by  a  scrawl,  a 
fac  simile  of  the  seal  or  device  not  being  absolutely  necessary.* 

§  259.  Conveyances  by  Incorporated  Religious  Societies.     The 

class  of  corporate  conveyances  to  which  allusion  has  been  made 
in  the  preceding  paragraphs  are  those  executed  by  public  corpora- 
tions or  private  corporations  organized  for  business  purposes. 
There  remains,  however,  another  class  of  private  corporations 
which  occupy,  so  far  as  regards  their  legal  corporate  existence,  a 
peculiar  position  in  commercial  circles,  and  these  are  incorporated 
religious  and  kindred  societies  not  organized  for  pecuniary  gain. 
The  legal  title  to  the  property  held  by  these  societies  in  their  cor- 
porate capacity  is  usually  vested  in  trustees,  and  conveyances  by 
such  societies  are  effected  through  the  media  of  these  trustees. 
More  than  ordinary  care  should  be  observed  in  abstracting  such 
conveyances,  and  a  number  of  the  incidents  that  do  not  call  for 
explicit  mention  in  other  deeds,  must,  in  this  class  of  instruments, 
be  set  out  in  full.  The  method  of  conveyance,  if  pointed  out  or 
prescribed  by  the  statute,  is  of  the  essence  of  the  deed,  and  where 
the  abstract  does  not  disclose  a  statutory  compliance,  it  should  be 
sent  back  to  the  examiner  for  further  investigation. 

Tlie  sufficiency  of  a  deed  of  this  kind  under  the  statute  of 
Illinois — and  the  same  requisites  are  essential  in  all  other  States 
whose  statutes  have  been  examined — requires  that  the  individual 
names  of  the  trustees  should  be  inserted  as  grantors,  with  the 
addition  of  words  descriptive  of  the  character  in  which  they  act. 

2  Illinois,  etc.,  R.  R.  v.  Johnson,  40 
lU.   35. 


§  260]  SPECIAL   CLASSES  OP  INDIVIDUAL   CONVEYANCES.  287 

The  granting  clause  should  witness  that  the  said  gi-antors,  as  trus- 
tees of,  for,  and  by  the  direction  of,  the  society  for  which  they 
purport  to  act,  for  the  consideration,  do  grant,  bargain,  etc.  The 
attestation  clause  should  be,  that  the  said  first  parties,  as  such  trus- 
tees, "have  hereunto  set  their  hands  and  seals,"  or  their  official 
style  should  be  added  to  their  signatures,  and  the  instrument 
should  be  acknowledged  by  the  individuals  in  their  proper  char- 
acter as  trustees.^ 

§  260.  Heirs  at  Law.  The  unsatisfactory  character  of  convey- 
ances purporting  to  be  made  by  the  heirs  at  law  of  a  deceased 
person  has  already  been  shown.  The  recital  in  a  deed  that  the 
parties  making  it  are  the  heirs  at  law  of  a  former  owner  is  no 
evidence  of  the  fact  recited,  except  as  against  the  parties  to  the 
deed  and  their  privies.  Where  the  abstract  furnishes  no  infor- 
mation, other  than  that  contained  in  the  deed,  to  prove  the  char- 
acter of  the  parties,  death  of  the  ancestor,  etc.,  a  requisition  should 
always  be  made  by  counsel  for  further  information,  which,  unless 
a  probate  is  had,  usually  consists  of  affidavits  in  support  of  the 
facts,  made  by  persons  who  are  supposed  to  be  cognizant  of  them.* 

On  the  other  hand,  grave  questions  may  arise  from  conveyances 
by  third  persons  made  in  derogation  of  the  rights  of  heirs.  Par- 
ticularly will  this  be  the  case  where  said  rights  consist  only  of 
equities.  Matters  of  this  kind  may  not  be  disclosed  by  the  ab- 
stract, yet  will  readily  appear  by  inquiries  in  pais.  For  this  rea- 
son counsel  should  always  direct  the  attention  of  clients  to  the 
actual  occupation  of  the  land  and  the  rights  of  the  persons  in  pos- 
session, if  any.  The  possession  of  land  by  a  person  at  the  time  of 
his  death  is  prima  facie  evidence  of  ownership  at  the  time,  and  a 
subsequent  purchaser  of  the  legal  title  will  be  conclusively  pre- 
sumed to  know  that  whatever  rights  such  deceased  person  had  in 
the  land,  not  disposed  of  by  will,*  and  of  an  inheritable  character, 
devolved  on  his  heirs,  and  his  possession  being  constructive  notice 
of  his  rights  at  the  time  of  his  death,  it  becomes  the  duty  of  such 
purchaser  to  make  all  necessary  inquiries  to  ascertain  the  extent 
of  the  interest  of  such  heirs.^ 

5  Lombard  v.  Sinai  Congregation,  for  a  deed  died,  and  his  widow  upon 
64  111.  477.  payment  of  the  sum  due  on  the  land, 

4  Yahoola,  etc.,  Mining  Co.  v.  Irby,  procured   the   legal   title   to   be   made 

40  Ga.  479.     For  a  precedent  of  an  to  her,  and  then  conveyed  same  to  a 

affidavit  of  this  kind  see  chap.  30.  third  person,  who  had  notice  of  the 

6  See  ' '  Descents, ' '  infra.  equitable   title   of   the  heirs.    MeVey 
6  The  above  rule  was  applied  in  a  v.   McQuality,  97  111.  93. 

ease  where  a  person  holding  a  bond 


288  ABSTRACTS   OP  TITLE.  [§  261 

§261.  Post  Obit  Conveyances.  The  conveyance  by  an  heir 
apparent  of  his  expectancy  in  land  owned  by  his  living  ancestor, 
which  would  descend  to  him  if  he  survived  his  ancestor,  and  the 
latter  should  die  intestate  owning  the  same,  is  a  conveyance  of  a 
mere  naked  possibility  not  coupled  with  an  interest  and  passes 
no  estate  or  interest  in  the  laud.  Such  a  title  cannot  operate  to 
defeat  the  grantor's  own  title  afterward  acquired  by  descent, 
except  by  way  of  estoppel,  and,  if  the  deed  was  without  warranty, 
such  grantor  is  not  precluded  from  asserting  an  after-acquired 
title."'  But  where  a  conveyance  of  this  character  is  made  with 
covenants  of  warranty,  it  will  operate  to  pass  the  title  by  estoppel 
if  the  land  descends  to  the  heir.^ 

§  262.  Conveyances  by  Delegated  Authority.  Every  deed  exe- 
cuted b}'  virtue  and  in  pursuance  of  a  power  should  bear  upon 
its  face  a  recital  of  authority,  but  deeds  purporting  to  be  the 
direct  act  of  the  grantor  though  performed  by  an  attorney  in  fact 
are  sufficiently  formal  if  the  execution  and  authentication  affima- 
tively  show  the  fact.  It  is  therefore  recommended  that  the  de- 
scription of  the  parties  grantor  should,  in  all  cases  of  delegated 
authority,  be  taken  from  the  execution  and  not  from  the  prem- 
ises, which  as  a  rule,  does  not,  and  as  a  matter  of  correct  form, 
should  not,  show  the  vicarious  act.  The  recital  of  acknowledg- 
ment should  also  be  drawn  to  show  the  substitution  of  persona. 
Aside  from  these  two  points  the  abstract  of  a  deed  executed  by 
an  attorney  in  fact  differs  in  no  material  respect  from  one  ex- 
ecuted by  the  grantor  in  personam.  The  points  mentioned  may 
be  shown  in  this  manner : 

John  Smith,  hy  WiUiam  Strong,  ^  Warranty  Deed. 


his  attorney  in  fact, 
to 
James  Boiinson. 


Dated,  etc. 

*  « 


Acknowledged  June  1,  1882,  hy  William  Strong,  as  the  act  and 
deed  of  said  John  Smith. 

If  desired,  however,  the  abstract  of  the  deed  may  be  made  in 
the  usual  manner,  the  caption  reciting  the  name  of  the  grantor 

7  Hart  V.  Gregg,  32  Ohio  St.  502 ;  come   to    him    by    descent,   and   same 

Boynton  v.  Hubbard,  7  Mass.  112.    In  was  held  to  be  void  at  law  as  well  as 

this  case  a  covenant  was  made  by  an  in  equity. 

heir  to  convey,  on  the   death  of  his  8  Rosenthal    v.    Mayhugh,    33    Ohio 

ancestor,  if  he  should  survive  him,  a  St.  158;  Bohon  v.  Bohon,  78  Ky.  408. 
certain  undivided  part  of  what  should 


§  262]  SPECIAL    CLASSES   OF    INDIVIDUAL    CONVEYANCES.  289 

as  found  in  the  premises.     In  such  case  the  execution  may  be 
shown  as  follows: 

Said  grantor  signs  and  acknowledges  by  William  Strong,  his 
attorney  in  fact. 

Erroneous  or  imperfect  execution  or  acknowledgment  must  be 
indicated  in  the  manner  already  pointed  out.  The  instrument 
is  properly  and  legally  executed  if  it  bears  the  name  (signature) 
and  seal  of  the  grantor,  showing  the  procurement  of  the  attorney 
and  purporting  to  be  the  act  of  the  principal;  but  in  making  the 
acknowledgment,  the  attorney,  being  the  person  who  actually  ex- 
ecutes the  instrument,  must  acknowledge  it;  yet  this  he  does  as 
and  for  his  principal. 

As  to  what  constitutes  a  proper  signing  there  is  some  conflict 
of  authority,  the  earlier  eases  holding  it  to  be  immaterial  whether 
the  attorney  sign  "A,  attorney  for  B,"  or  "B,  by  his  attorney 
A, "  ^  on  the  theory  that  no  particular  form  of  words  is  necessary 
to  bind  the  principal,  provided  the  agency  of  the  attorney  ap- 
pears from  the  deed  itself.^®  It  is  now  well  established,  however, 
that  a  conveyance  made  by  an  attorney  must  be  in  the  name  of  the 
principal,  and  purport  to  be  executed  by  him,^^  and  where  the 
agent  assumes  either  to  grant  or  to  execute,  as  where  he  signs  and 
seals,  although  describing  his  office,  the  deed  wiU  be  void  as  to  the 
principal.^'^  It  has  also  been  held  that  signing  the  principal's 
name,  but  making  no  mention  of  the  attorney,  is  not  a  valid  ex- 
ecution.^* It  would  seem,  therefore,  that  in  all  conveyances  by  at- 
torneys in  fact,  both  the  name  of  the  principal  and  of  the  attor- 
ney must  substantially  appear  in  the  execution  of  the  deed,  show- 
ing not  only  that  the  grant  and  seal  are  those  of  the  principal, 

9  Jones  V.  Carter,  4  Hen.  &  M.  184;  12  Fowler  v.   Shearer,  7   Mass.  14; 

Montgomery  v.  Dorion,  7  N.  H.  475;  State  v.  Jennings,  10  Ark.  428;   Mc- 

Wilkes  V.  Back,  2  East,  142.  Donald    v.    Bear   Eiver    Co.,    13    Cal. 

lOMagill  V.  Hinsdale,  6  Conn.  464;  235;    and   this,    even   though   in    the 

Worrall  v.  Munn,  1  Seld.  229.  body   of   the   instrument   it  is   stated 

11  Pensonneau   v.    Bleakley,    14   111.  that  it  is  the  agreement  of  the  prin- 

15;    Elwell    v.    Shaw,    16    Mass.    42;  cipal    by   his   attorney,   and   that   the 

Thurman  v.   Cameron,   24  Wend.    (N,  principal  covenants,  etc.,  while  in  the 

Y.)    90;    Stinchfield  v.  Little,  1  Me.  testimonium  clause  it  is  alleged  that 

231;    Hale  v.  Woods,   10  N.  H.  470.  A.  B.  (the  agent),  as  the  attorney  of 

Less   strictness  is  required  where  the  the   principal,   has   set   his   hand   and 

instrument  is  not  under  seal,  it  being  seal:   Townsend  v.  Corning,  23  Wend. 

8uflB.cient,  in  such  case,  if   the  intent  435. 

to  bind  the  principal  appears  in  any  13  Wood  v.  Goodridge,  6  Gush.  117. 
part    of    the    instrument:     Townsend 
V.  Hubbard,  4  Hill   (N.  Y.),  351. 
Warvelle  Abstracts — 19 


290  ABSTRACTS   OP    TITLE.  [§  262 

but  by  whom  these  acts  are  done ;  ^*  and  where  there  are  two 
grantors,  and  one  of  them  acts  as  the  attorney  in  fact  of  the 
other,  he  must  subscribe  his  name  twice,  once  as  attorney  in  fact 
for  the  other,  and  once  for  himself.  One  signature  and  a  second 
seal  is  not  equal  to  a  second  subscription.^^ 

It  is  not  necessarj',  however,  that  any  particular  form  of  words 
should  be  used  to  render  the  instrument  valid  and  binding  upon 
the  principal,  provided  it  shows  upon  its  face  that  it  was  in- 
tended to  be  executed  as  the  deed  of  the  principal,  and  that  the 
seal  affixed  is  his  seal  and  not  that  of  the  attorney;  and  it  has 
been  held,  that  where  a  deed  is  executed  for  several  parties,  it  is 
not  necessary  to  affix  a  separate  and  distinct  seal  for  each  sig- 
nature if  it  appears  that  the  seal  afftxed  was  intended  to  be 
adopted  as  the  seal  of  each  of  the  parties.^* 

§  263.  Powers  of  Attorney.  Immediately  preceding  or  follow- 
ing the  abstract  of  every  deed  purporting  to  have  been  made  by 
the  procurement  of  an  attorney  in  fact,  should  appear  the  war- 
rant or  power  which  authorized  the  act ;  for  an  unauthorized  deed 
would  be  void  for  all  purposes,  and  the  proof  of  this  power  can 
only  be  shown  by  an  instrument  executed  with  all  the  formalities 
uecessarj^  to  a  valid  deed  of  conveyance.^'''  The  instrument  usually 
recites  the  scope  of  the  attorney's  powers,  yet  even  where  it  is 
deficient  in  some  particular,  others,  which  are  necessary  to  the 
proper  exercise  of  the  powers  expressly  enumerated,  will  be  im- 
plied as  incidental  thereto;  as,  where  a  power  is  expressly  given 
to  sell  or  lease  the  property  of  the  principal,  a  power  to  contract 
to  sell,  as  well  as  to  convey  and  transfer,  will  be  implied.^®  The 
usual  rule,  however,  is  to  construe  instruments  of  this  kind  strictly ; 
hence,  a  power  to  "sell  and  convey,"  will  not  be  extended  by  in- 
terpretation to  include  a  power  to  mortgage,  or  otherwise  to 
dispose  of  the  property  than  by  a  sale  and  conveyance.^® 

The  right  of  revocation,  as  a  rule,  is  always  reserved,  but  this  is 
a  right  incident  to  the  power  given,  and  a  principal  may  always 
revoke  the  authority  of  his  agent  at  his  mere  pleasure  without  a 
reservation  of  such  express  right,  or  even  though  the  power  may 

14  See  3  Wash.  Keal  Prop.,  "573,  Clark  v.  Graham,  6  Wheat.  (U.  S.) 
and   cases  cited.  577;  Videau  v.  Griffin,  21  Gal.  389. 

15  Meagher  v.  Thompson,  49  Gal.  18  Hemstreet  v.  Burdick,  90  111. 
189.  444. 

16  Townsend  v.  Hubbard,  4  Hill  (N.  19  Minnesota,  etc..  Go.  v.  McGros- 
Y.),   351.  sen,  110  Wis.  316;  Golesburg  v.  Dart, 

17  Fire  Ins.  Co.  v.  Doll,  35  Md.  61  Ga.  620;  Hawxhurst  v.  Rathgeb, 
89;  Watson  v.  Sherman,  84  111.  263;  119  Gal.   531. 


§  263]  SPECIAL   CLASSES  OF   INDIVIDUAL   CONVEYANCES.  291 

be  expressly  declared  to  be  irrevocable.^®  The  only  exceptions 
to  this  rule  are  when  the  authority  or  power  is  coupled  with  an 
interest  or  where  it  is  given  for  a  valuable  consideration,  or  where 
it  is  part  of  a  security,  in  all  of  which  cases  it  is  irrevocable, 
whether  so  expressed  or  not.^^ 

As  before  remarked,  powers  of  attorney  must  be  strictly  con- 
strued, yet  the  rule  does  not  require  a  construction  that  will  de- 
feat the  manifest  intention  of  the  parties,  and  where  such  inten- 
tion fairly  appears  from  the  language  used,  it  must  prevail,^^  but 
the  authority  can  not  be  extended  beyond  that  which  is  clearly 
given  in  terms,  or  which  is  necessary  and  proper  for  carrying  the 
authority  given  into  full  execution.^^  In  this  respect  there  is  a 
marked  difference  as  compared  with  powers  of  appointment  created 
by  deeds  and  wills,  and  powers  introduced  in  connection  with  uses. 

The  formal  requisites  to  be  observed,  apart  from  such  as  are  inci- 
dent to  all  sealed  instruments,  are  the  constituent  words,  which 
are  "make,  constitute  and  appoint;"  the  powers  delegated;  the 
reservation  of  the  right  of  revocation,  and  the  power  of  substitu- 
tion, if  any  is  given.^*  The  recital  of  the  power  always  calls  for 
minuteness  in  transcription,  and  when  coupled  with  an  interest  or 
created  upon  a  valuable  consideration,  it  should  be  rendered  with 
literal  fidelity.  The  arrangement  of  the  synopsis  is  much  the  same 
as  other  grants.     An  example  is  appended: 


John   Smith 

to 

William  Strong. 


Power  of  Attorney. 
Dated,  etc. 


First  party  makes,  constitutes  and  appoints  second  party  his 
true  and  lawful  attorney,  for  Mm  and  in  his  name,  place  and  stead, 

20  Walker  v.  Denison,  86  111.  142;  thorize  a,  sale  of  the  individual  prop- 
Brown  V.  Pforr,  38  Cal.  550.  erty  of  either,  or  at  least  in  the  ab- 

21  Walker  v.  Denison,  86  111.  142;  sence  of  proof  of  the  non-existence 
Gilbert  v.  Holmes,  64  111.  548;  Brown  of  joint  property:  Dodge  v.  Hopkins, 
V.  Pforr,  38  Cal.  550.  14  Wis.  630. 

22Hemstreet    v.    Burdick,    90    111.  24  Where  the   authority  of  the  at- 

444.  torney    is    to    execute    deeds    of   con- 

23  Pool  V.  Potter,  63  111.  533.   Hoyt  veyance  the  power,  as  a  rule,  cannot 

V.    Jaques,    129    Mass.    286;    Gilbert  be    delegated.      Where    it    relates    to 

V.  How,  45  Minn.  121.    Thus,  a  power  other   matters    it   is    often    permitted 

of  attorney  jointly  executed  by  hus-  to   be  exrcised  by   persons  whom   the 

band  and  wife  for  the  sale  of  all  their  attorney    may    appoint    or    substitute 

property,    and    in    which    the    words,  for  himself  and  to  such  persons  the 

"we,"  "ours,"  etc.,  are  exclusively  attorney    may    entrust    the    same    or 

used,  has  been  held  insufficient  to  au-  more  limited  powers  as  are  given  to 


292  ABSTRACTS   OF   TITLE.  [§  263 

to   [here  folhuvs  the  special  purpose  of  the  po^Yer,  literally  ren- 
dered]. 

Full  power  of  snhstitvtion  and  revocation. 

Acknowledged,  etc. 

An  unexeeuted  power,  if  still  subsisting,  should,  as  a  rule,  be 
set  out  in  full,  though  many  examiners  show  such  instruments 
only  by  way  of  note.  This  latter  method  may  be  resorted  to  with 
propriety  only  in  a  few  instances,  and  unless  there  has  been  an 
implied  revocation,  as  where  the  constituent  has  afterward  made 
conveyance  himself,  or  where  there  has  been  an  expiration  by  lim- 
itation, or  some  other  circumstance  of  like  character,  such  a  course 
is  not  recommended.  The  following  will  serve  to  illustrate  the 
method: 

Note. — In  Book  20,  page  168,  xve  find  recorded  a  power  of  at- 
torney from  Thomas  J.  Walsh  to  Austin  Bierbower,  aw- 
thorizing  him  to  sell  and  convey  the  North  East  quarter  of 
Section  13,  aforesaid  (and  other  property),  hut  as  no  action 
(appearing  of  record)  has  teen  had  under  said  power  (as 
regards  the  premises  in  question)  we  do  not  show  it  herein. 

§  264.  Revocations.  The  recall  of  a  power  or  authority  con- 
ferred, or  the  vacating  of  an  instrument  previously  made,  is  called 
a  revocation.^^  A  power  of  attornej^  may  be  revoked  in  a  variety 
of  ways ;  as  by  the  death  of  the  principal,  which  operates  as  a  revo- 
cation of  every  power  uncoupled  with  an  interest ;  ^^  the  marriage 
of  the  principal,  the  power  having  been  given  while  he  was  a  sin- 
gle man ;  ^"^  an  adjudication  in  bankruptcy ;  or  a  conveyance  by 
the  principal  of  the  subject-matter  of  the  power  before  the  agent 
has  had  an  opportunity  to  dispose  of  it.^^  But  the  giving  of  a 
second  power  to  another  agent,  without  specially  revoking  the  first, 
would  not  act  as  a  revocation,  and  if  either  poAver  is  executed,  both 
will  be  exhausted.^®  In  the  foregoing  instances,  the  revocation 
occurs  by  operation  of  law.  The  principal  may  revoke  by  a  special 
instrument  of  revocation,  which,  when  recorded  with  the  power, 
will  operate  as  constructive  notice  of  such  fact.  An  unexercised 
power,  followed  by  revocation,  sheds  no  light  on  the  title,  and  may, 

him  by  the  principal.     If  the  letters  87  Henderson  v.  Ford,  46  Tex.  627. 

contain  no  powers  of  substitution  this  28  Walker  v.  Denison,  86  111.  142. 

cannot   be   done.  29  Cushman  v.  Glover,  11  111.  600. 

25  2  Bou.   Law  Diet.,  477. 

26  Blayton  v.  Merrett,  52  Miss.  353 ; 
Davis  V.  Sa\ing8  Bank,  46  Vt.  728. 


§  265]  SPECIAL    CLASSES   OF   INDIVIDUAL    CONVEYANCES.  293 

with  propriety,  be  disregarded,  but  if  it  should  be  deemed  desirable 
to  show  same,  a  brief  mention  among  the  appendices  would  seem 
to  be  all  that  is  required.  Should  the  examiner  desire  to  show  the 
transaction  in  regular  course  it  should  be  treated  much  in  the 
same  manner  as  a  satisfied  mortgage,  that  is,  the  power  should  be 
exhibited  in  brief  terms  in  its  proper  place  and  the  revocation 
should  immediately  follow.  This  would  be  a  sufficient  reference  to 
the  revocation: 


John  Smith 

to 

William  Strong. 


Revocation. 
Dated,  etc. 


Sets  forth  the  execution  of  the  power  of  attorney  shown  as 
No.  10,  ante,  and  countermands  and  revokes  same,  and  all  power 
and  authority  thereby  given  to  said  William  Strong. 

Acknowledged,  etc. 

It  is  important  that  sufficient  evidence  should  always  be  pro- 
vided as  to  the  continuance  of  a  power  at  the  time  of  its  exercise. 
An  unrevoked  power  duly  recorded  furnished  sufficient  evidence 
as  far  as  it  goes,  but  unless  the  abstract  also  discloses  the  fact  that 
the  principal  was  living  at  such  time,  or  had  not  been  subjected 
to  the  disability  of  bankruptcy  or  other  disqualifying  cause,  pru- 
dence would  suggest  that  an  inquiry  in  pais  be  made  to  ascertain 
such  facts.  If  the  examiner  is  personally  cognizant  of  the  fact 
that  a  donor  of  a  power  of  attorney  was  alive  at  the  time  of  the 
execution  of  the  power  he  may,  if  so  disposed,  testify  to  this  fact. 
This  may  be  accomplished  by  a  note  as  follows : 

Note. — To  my  knowledge,  John  Smith,  the  grantor  named  in  the 
foregoing  deed,  was  alive  on  August  1,  1902. 

This  course  is  purely  optional  with  the  examiner,  but  it  will  often 
be  of  great  service  to  counsel. 

§265.  Conveyances  in  Trust.  Trust  deeds  were  formerly  of 
very  common  occurrence,  but  are  now  rarely  employed,  save  in  a 
few  States  where  mortgages  are  made  in  that  form.  They  were 
used  to  convey  the  beneficial  interest  to  persons  who  were  incapa- 
ble of  holding  the  legal  title,  or  in  whom  it  was  not  desirable  to 
have  the  legal  title  vest.  With  the  gradual  disuse  of  uses  and 
trusts  in  some  States,  and  their  summary  abolition  in  others,  con- 


294  ABSTRACTS   OF   TITLE.  [§  265 

voyances  of  this  character  have  become  infrequent,  while  no  estate 
or  interest,  legal  or  equitable,  will  vest  in  the  trustee  under  the 
statutes  of  some  of  the  States,  but  the  beneficiary  takes  the  entire 
legal  estate  of  the  same  quality  and  duration,  and  subject  to  the 
same  conditions  as  his  beneficial  interest.^** 

The  character  of  the  instrument,  as  well  as  its  effect,  may  be 
readily  determined  bj'  inspection;  if  it  imposes  on  the  trustee  active 
duties  with  respect  to  the  trust  estate,  such  as  to  sell  and  convert 
into  money,  or  to  lease  the  same  and  collect  the  rents,  pay  taxes, 
etc.,  and  to  pay  the  net  proceeds  to  the  beneficiary,  it  creates  an 
active  trust  which  the  statute  does  not  execute,^^  but  if  there  is 
simply  a  conveyance  to  the  trustee  for  the  use  of,  or  upon  a  trust 
for,  another,  and  nothing  more  is  said,  the  statute  immediately 
transfers  the  legal  estate  to  the  use,  and  no  trust  is  created,  al- 
though express  words  of  trust  are  used. 

"When  conveyances  in  trust  are  allowed,  the  nature,  quality  and 
extent  of  the  trust  should  be  very  explicitly  stated ;  while  in  States 
where  only  a  few  enumerated  express  trusts  are  recognized,  every 
part  of  the  instrument  necessary  to  bring  it  within  one  of  the 
classes  named  in  the  statute  must  be  shown.  The  trust  is  ordinarily 
sufficiently  disclosed  by  the  recitals  of  the  habendum,  but  where 
there  is  a  power  of  appointment,  and  certain  reservations  for  vari- 
ous purposes,  a  very  full  synopsis  of  every  part  of  the  deed  will  be 
absolutely  necessary  for  a  proper  understanding  of  it.  In  the 
latter  case  there  should  be  shown  the  special  matter  of  inducement 

30  Witham  v.  Brooner,  63  111.  344 ;  for  the  benefit  of  any  married  woman, 

Eoth  V.  Michalis,  125  Md.  325.     This  or  for  any  of  the  purposes  and  within 

applies  more  particularly  to  "dry"  or  the  limits   of   the   statute  prescribing 

passive    trusts.      Express    trusts    are  the    nature    and    quality    of    the    es- 

still  generally  permitted  to  be  created  tates. 

for  the  following  purposes:  5.     For   the   beneficial   interests   of 

1.  To  sell  lands  for  the  benefit  of  any  person  or  persons,  when  such 
creditors.  trust    is    fully    expressed   and    clearly 

2.  To  sell,  mortgage,  or  lease  defined  upon  the  face  of  the  instru- 
lands  for  the  benefit  of  legatees,  or  ment  creating  it,  subject  to  the  linii- 
for  the  purpose  of  satisfying  any  tations,  as  to  the  time  and  the  ex- 
charge  thereon.  ceptions  thereto,   relating  to  literary 

3.  To  receive  the  rents  and  profits  and  charitable  corporations,  pre- 
of  lands  and  apply  them  to  the  use  scribed  by  the  statute. 

of  any  person  during  the  life  of  such  Trusts    resulting    from    implication 

person,  or  for  any  shorter  term,  sub-  of  law  are  always  recognized,  but  the 

ject    to   the   rules    prescribed   by   the  doctrine  has  been  very  much  circum- 

statute  fixing  the  quantity  and  dura-  scribed,  as  described  in  the  preceding 

tion  of  estates.  chapter. 

4.  To  receive  the  rents  and  profits  31  Kirkland  v.  Cox,  94  111.  400; 
of  lands  and  to  accumulate  the  same  Kellogg  v.  Hale,  108  111.  164. 


§  266]  SPECIAL    CLASSES   OF   INDIVIDUAL    CONVEYANCES.  295 

as  recited  in  the  premises;  the  grant;  the  habendum;  the  reserva- 
tion, explicitly  rendered ;  the  enumeration  of  the  trusts  and  powers, 
and  the  power  of  appointment,  or  successor  in  trust,  if  named. 

No  particular  form  of  words  is  requisite  to  create  a  trust,  the 
intent  only  being  regarded  by  courts  of  equity ,^2  yet  the  habendum 
usually  makes  a  formal  recital  after  the  preliminary  words  ''to 
have  and  to  hold,"  et^-.,  by  continuing,  "in  trust  nevertheless," 
or  some  similar  expression.  These  words,  however,  are  not  essen- 
tial and  trusts  must,  in  all  cases,  be  construed  according  to  the 
intention  of  the  parties  as  gathered  from  the  entire  instrument.^' 
Thus,  when  a  gift  is  expressed  to  be  for  the  "use  and  benefit"  of 
another,  or  "to  the  end"  that  the  donee  shall  apply  it  to  certain 
purposes,  this  will  be  sufficient  to  raise  a  trust  in  such  donee.'* 

Where  a  trust  is  intended  by  a  conveyance,  but  fails  entirely,  so 
that  the  grantee  takes  no  estate  in  the  land  under  the  convoyance, 
it  may  nevertheless  create  in  him  a  valid  power  in  trust,'^  th  e  legal 
title  remaining  in  the  grantor.'^  Where  the  deed  creates  a  valid 
trust,  the  entire  estate  vests  in  the  trustee,  subject  only  to  the  ex- 
ecution of  the  trust,  except  as  otherwise  provided ;  and  where  the 
deed  gives  a  power  of  sale  to  the  trustee  at  the  request  and  for 
the  benefit  of  the  beneficiary  under  the  deed,  no  power  of  revo- 
cation being  reserved,  no  estate  in  the  premises  is  left  in  the 
grantor  which  is  capable  of  being  transferred.'''^  Where  the  legal 
title  is  vested  in  a  trustee,  nothing  short  of  reconveyance  can  place 
the  same  back  in  the  grantor  or  his  heirs,  but  under  certain  cir- 
cumstances such  reconveyance  will  be  presumed  without  direct 
proof  of  the  fact."  Trust  estates  are  subject  to  the  same  rules  as 
legal  estates  in  every  case,  dower  excepted.'^ 

§  266.  Revocation  of  Trust.  It  is  competent,  in  some  cases,  for 
the  settler  of  a  trust  to  reserve  a  right  to  revoke  the  same,  and 
such  reservation  is  not  inconsistent  with  a  valid  trust.  The  re- 
served power  to  revoke  does  not  operate  to  destroy  the  trust,  which 
remains  absolute  and  effective  until  the  right  is  exercised,  and  if 
it  is  not  exercised  during  the  lifetime  of  the  grantor  the  trust  re- 

32  Fisher  v.  Field,  10  Johns.  494.  37  Marvin  v.   Smith,  46  N.  Y.  571 ; 

33  Kerr  v.  Verner,  66  Pa.  St.  326;  Leonard  v.  Diamond,  31  Md.  536. 
Guion  V.  Pickett,  42  Miss.  77.  38  Kirkland  v.  Cox,  94  111.  400;  re- 

34  Randolph  v.   Land   Co.,  104  Ala.  versing  81   111.   11;    80  111.   67. 

355.  39Danforth   v.   Lowry,   3    Haywood 

36  Fellows  V.  Heermans,  4  Lans.  (N.       (N.   C),  68. 
Y.)   230. 

36  This  is  now  the  general  statutory 
doctrine. 


'206  ABSTRACTS  OP  TITLE.  [§  266 

mains  as  though  there  had  never  been  a  provision  for  revocation.*® 
Where  an  instrument  of  this  character  is  found,  and  the  trust  is 
unexecuted,  the  reservation  should  be  copied  in  full. 

§  267.  Declaration  of  Trust.  To  establish  an  express  trust,  the 
evidence  inuat  all  be  in  writing,  and  suiiicieut  to  show  that  there 
is  a  trust,  and  what  it  is,*^  but  where  land  has  been  conveyed  by  a 
deed  absolute  in  form,  if  designed  simply  for  a  holding  in  trust, 
the  grantee  may  make  a  valid  admission  of  the  trust  in  a  separate 
instrument.*^  Such  instruments  are  known  as  "declarations  of 
trust,"  and,  unless  required  by  statute,  need  not  be  by  deed,  but 
any  writing  subscribed  by  the  trustee  will  be  sufdcient  if  it 
contain  the  requisite  evidence.*^  Although  it  is  not  essential 
that  the  writing  by  which  the  trust  is  manifested  and  proven 
should  be  in  any  pai'ticular  form,  it  is  customary  for  the  trustee 
to  declare  same  in  a  formal  document,  reciting  the  matter  of  in- 
ducement, declaring  the  nature  of  the  trust  estate,  and  frequently 
covenanting  against  his  own  acts,  and  for  conveyance  to  the  ben- 
ehciary.  Whatever  may  be  the  form  of  the  instrument,  the  natui-e 
and  quality  of  the  trust  declared,  and  the  terms  and  conditions 
upon  which  it  is  held,  should  sufticiently  appear  to  show  the  full 
intention  of  the  parties  as  manifested  by  the  instrument.  An  illus- 
tration is  herewith  given : 

Andrew  Baxter,  1      Declaration  of  Trust. 

Trustee,  [^     Dated,  etc.     *     *     *     • 

to  (      Recites,    that    Charles    Den- 

\Yhom  it  may  concern;  J  ton,  by  deed  beanng  even  date 

herewith,  in  consideration  of  $1,500.00,  conveyed  to  said  first  party 

in  fee  simple  the  following  described  lands,  to  wit:   [describing 

same]  as  by  said  deed  will  more  fully  appear.    And  that  said  first 

40  Lines  v.  Lines,  142  Pa.  St.  149 ;  43  Cook  v.  Barr,  44  N.  Y.  156,  By 
Vau  Cott  V.  Prentice,  104  N,  Y.  45;  the  English  statute  of  29  Charles  II, 
Nichols  V.   Emery,  109  Cal.  323.  Chap.    3,    §7,    it    was   enacted   "that 

41  Cook  V.  Barr,  44  N.  Y.  156 ;  all  declarations  or  creations  of  trust 
Steere  v.  Steere,  5  Johns.  Ch.  355;  or  confidence  of  any  lands,  tenements 
1  Green.  Cruise,  335.  But  this  does  or  hereditaments,  shall  be  manifested 
not  apply  to  resulting  trusts,  which  or  proven  by  some  writing  signed  by 
may  be  established  by  parol:  Faris  the  party  who  is  by  law  enabled  to 
V.  Dunn,  7  Bush  (Ky.),  276;  Me-  declare  such  trust,  or  by  his  last  will 
Ginity  v.  McGinity,  63  Pa.  St.  38.  in  writing,  or  else  they  shall  be  ut- 

42EUiott   V.    Armstrong,    2   Blackf.  terly  void  and  of  none  effect."    This 

198;  McLaurie  V.  Partlow,  53  111.  340;  statute    provided,    not    for    the    erea- 

Cook  V.  Barr,  44  N.  Y.  156;  Fast  v.  tion  of  trusts,  but  for  proving  them, 

McPherson,    98    lU.    496;    or    by   the  and  is  the  basis  of  American  statutes 

pleadings  in  a  chancery  suit:    Ibid.  on  the  same  subject.     Though  a  trust 


§  268]  SPECIAL    CLASSES   OF   INDIVIDUAL    CONVEYANCES.  297 

party  has  "this  day"  executed  and  delivered  to  said  Charles  Den- 
ton a  mortgage  upon  said  premises,  as  collateral  security  for  the 
payment  of  his  hond  for  the  paijment  of  $1,000.00  [stating  the 
terms]  heing  part  purchase  money  expressed  in  said  deed. 

Therefore,  said  first  party,  makes  known,  and  declares,  that  said 
premises  so  conveyed  to  him,  he  now  holds,  and  will  continue  to 
hold,  in  trust  only,  for  the  use  and  benefit  of  George  Zeigler,  son 
and  heir  at  law  of  Henry  Zeigler,  deceased,  and  that  he  has  no 
heneficial  interest  therein,  except  what  may  arise  hy  legal  or 
equitable  implication  from  the  circumstances  attending  the  execu- 
tion of  said  mortgage. 

Said  first  party  further  admits  that  the  residue  of  the  consid- 
eration motley  expressed  in  said  deed  to  him,  to  wit:  the  sum  of 
$500.00,  was  paid  by  William  Zeigler,  for  the  benefit  of  said  George 
Zeigler. 

And  said  first  party  covenants  to  and  with  said  William  Zeigler 
■and  George  Zeigler,  that  he  will  convey  said  premises  by  "good 
and  sufficient"  deed,  to  said  George  Zeigler,  or  his  assigns,  as  he 
&r  they  may  direct,  whenever  and  as  soon  as  said  mortgage  shall 
have  been  paid  off  and  discharged,  or  otherwise  fully  secured  to 
said  first  party,  and  that  free,  clear  and  discharged  from  all  and 
every  incumbrance  therein  by  said  first  party. 

First  party  further  covenants  against  his  own  acts. 

§268.  Removal  or  Substitution  of  Trustees.  Where  a  trustee 
is  dead,  the  trust  being  still  alive  and  unexecuted,  a  court  of 
equity  will  carry  it  out  if  necessary,  through  its  o"\vn  officers  and 
agents,**  and  maj^  appoint  a  new  trustee,*^  and  it  seems  that  in 
some  States,  even  where  the  trust  deed  contains  a  power  of  ap- 
pointment, in  the  event  of  the  death  of  the  trustee  without  ex- 
ecuting the  trust,  the  cestui  que  trust  can  not  appoint  a  new  trus- 
tee, but  the  exercise  of  this  right  devolves  exclusively  on  a  court 
of  chancery.*^  A  trustee  may  always  be  removed  in  the  discre- 
tion of  the  court  upon  proper  cause  shown.*''' 

of   lands   can   not  be    established   by  46  Guion    v.    Pickett,    42    Miss.    77. 

parol,  yet  if  the  trustee  execute  the  As  a  general   rule,  a  court  of  chan- 

trust,  he  is  bound  by  the  act.  eery   has    jurisdiction    to    control    the 

44Batesville  Institute  v.  Kauffman,  exercise  of  the  power  of  appointment 

18  Wall.  120.     It  is  a  rule  in  equity,  when  vested  in  an  individual  so  far, 

that  a  trust  shall  never  fail  for  want  at  least,   as   to   prevent  an  abuse  of 

of  a  trustee:  Buehan  v.  Hart,  31  Tex.  discretion:     Bailey   v.   Bailey,   2   Del. 

647.  Ch.  95. 

46  Curtis    V.    Smith,    60    Barb.    9;  47  Att'y-Gen.  v.  Garrison,  101  Mass. 

Hunter  v.  Vaughan,  24  Gratt.   (Va.)  223;  Ketchum  v.  R.  R.  Co.,  2  Woods, 

400.  .132;  Scott  v.  Rand,  118  Mass.  215. 


298  ABSTRACTS   OF   TITLE.  [§  269 

§  269.  Resignation — Refusal  to  Act — Successor.  A  trustee  can 
not  divest  himself  of  the  obligration  to  perform  the  duties  of  his 
trust  without  an  order  of  court,  or  the  consent  of  all  the  cestuis 
que  trust,'^^  and  where  he  refuses  to  act,  equity  will  compel  him 
to  do  so,  or  appoint  a  suitable  person  in  his  place.*®  It  is  cus- 
tomary, however,  in  some  classes  of  trust  deeds,  to  appoint  a  suc- 
cessor in  trust,  in  the  event  that  the  trustee  becomes  disabled  or 
refuses  to  act,  and  where  a  deed  contains  an  appointment  of  this 
kind  it  is  always  well  to  show  it.  If  the  trust  is,  in  fact,  executed 
by  the  successor,  the  original  appointment  must  be  shown.  This 
will  often  occur  in  cases  of  trust  deeds  in  the  nature  of  mortgages. 

48  Thatcher  V.  Candee,  4  Abb.  App.  49  Sargent    v.    Howe,    21    111.    148; 

Dec.    (N.   Y.)    387;    Cruger  v.   HaUi-       Wilson  v.  Spring,  64  111.   14. 
day,  11  Paige   (N.  Y.),  314. 


CHAPTER  XVII. 


OFFICIAL   CONVEYANCES. 


§270. 

Defined  and  distinguished. 

§283. 

Power    of   sale   and   trust   of 

§271. 

Official  deeds  generally. 

sale  distinguished. 

§272. 

Recitals. 

§284. 

Trustees'    deeds. 

§273. 

Covenants. 

§285. 

Mortgagees'   deeds. 

§274. 

Sheriff 's     deed  —  On     execu- 

§286. 

Executors  and  administrators. 

tion. 

§287. 

Executors '    deeds. 

§275. 

Continued  —  Acknowledgment. 

§288. 

Administrators '   deeds. 

§276. 

Continued — Operation,    effect. 

§289. 

Administrator    with    will    an- 

§277. 

Continued — Imperfect  descrip- 

nexed. 

tion. 

§290. 

Guardians'  deeds. 

§278. 

Statutory   sheriff  'a    deeds. 

§291. 

Trustees  can  not  become  pur- 

§279. 

Sheriff's  deed — Under  decree. 

chasers. 

§280. 

Masters',  commissioners',  and 

§292. 

Continued  —  Qualifications    of 

referees'  deeds. 

the  rule. 

§281. 

Trustees. 

§282. 

Transfers  of  the  legal  estate 
by  trustees. 

§270.  Defined  and  Distinguished.  Official  deeds  comprise  all 
those  forms  of  conveyance  wherein  the  maker  acts  by  virtue  of  an 
office  and  not  in  his  individual  or  personal  capacity.  They  cover 
a  wide  portion  of  the  field  of  conveyancing  and  assume  a  variety 
of  shapes,  but  may  be  reduced  to  two  general  classes,  viz.:  those 
made  in  a  fiduciary  capacity,  as  the  deeds  of  trustees,  executors, 
etc. ;  and  those  made  in  a  ministerial  character,  as  the  deeds  of 
sheriffs,  commissioners,  masters,  etc.^  The  rules  for  construing 
deeds  are  much  the  same,  whether  the  deed  be  made  by  a  party  in 
his  own  right,  or  by  a  fiduciary  or  officer  of  the  court.^ 

§  271.  Ofl&cial  Deeds  Generally.  It  is  the  policy  of  the  law  to 
invest  the  sheriff,  master  in  chancery,  administrator,  or  other  offi- 
cer making  sales  of  real  estate  in  a  purely  ministerial  capacity,  with 
only  a  mere  naked  power  to  sell  such  title  as  the  debtor,  deceased 
person,  etc.,  had,  without  warranty,  or  any  terms,  except  those 


1  For  a  further  discussion  of  the 
subjects  of  this  chapter,  the  reader 
is  referred  to  the  chapters,  "Execu- 
tion and  Judicial  Sales,"  "Chancery 


Proceedings,"  "Judgments  and  De- 
crees" and  "Probate  Proceedings 
and  Descents." 

2  White  V.  Luning,  93  U.  S.  515. 


299 


300  ABSTRACTS   OP   TITLE.  [§  271 

imposed  by  law.  Ileuce  purchasers  at  such  sales  assume  the  risk 
of  the  title,  as  uell  as  the  validity  of  the  proceedings  under  which 
the  sale  is  made.^  The  power  to  sell  lands,  however  conferred, 
must,  as  a  rule,  be  strictly  pursued,  otherwise  the  sale  will  be  void 
and  no  title  will  pass,*  and  a  deed  which  shows  on  its  face  an  ex- 
cess of  authority  in  the  officer  executing  it,  will  not  be  sufficient  to 
sustain  the  title  of  one  claiming  under  it.*  Much  detail  will  fre- 
quently be  required  in  the  abstract  of  an  instrument  of  this  char- 
acter, which  should  show  substantially  all  the  material  parts  of 
the  deed,  including  the  recitals  necessary  to  a  full  compliance 
with  the  law,  even  though  the  instrument  may  seem  at  times  to  be 
unreasonably  long.  A  judicious  condensation,  where  the  full  spirit 
of  the  original  is  retained,  may  be  observed  to  good  purpose,  and 
the  labor  of  examiner  and  counsel  be  thereby  perceptibly  lightened, 
but,  in  a  matter  of  this  kind,  it  is  better  to  err  by  inserting  too 
much  than  too  little. 

§  272.  Recitals.  It  is  customary,  and  in  many  eases  necessary, 
to  show  all  the  material  recitals  in  official  deeds,  notwithstanding 
that  such  recitals  are  regarded  only  as  matters  of  inducement;® 
but  where  the  form  of  a  deed  is  prescribed  by  statute  they  become 
substance  "^  and  must  always  be  shown  or  indicated  in  some  man- 
ner. The  main  reason  why  such  recitals  should  be  shown,  arises 
from  the  fact  that  they  are  usually  regarded  as  evidence  against 
the  grantee  and  those  claiming  under  him,®  and  as  to  such  parties 
are  conclusive.^  The  recitals  are  further  regarded  as  presumptive 
evidence  of  the  facts  stated,^"  and  will  prevail  until  the  contrary 
is  shown.  These  remarks,  however,  have  reference  more  to  min- 
isterial officers  than  to  fiduciaries.  The  recitals  in  the  deeds  of  the 
latter  are  material  to  .show  a  due  execution  of  the  powers  given. 

3  Bishop  V.  O 'Connor,  69  111.  431.  6  Leland    v.    Wilson,    34    Tex.    79; 

4  King  V.  Whiton,  15  Wis.  684;  Foulk  v.  Coburn,  48  Mo.  225;  War- 
White  V.  Moses,  21   Cal.  44.  ner   v.   Sharp,   53   Mo.   598;    Jones   v. 

6G.   B.  &  M.   C.   Co.  V.   Groat,  24  Scott,  71  N.  C.  192.     A  clerical  error 

Wis.    210;    French    v.    Edwards,    13  in  the  recitals  is  not  to  be  regarded 

WalL    506.      The    deed    in    this    case  in  equity:  Stow  v.  Steele,  45  111.  328. 

was  by   a  sheriff  under  a  judgment  7  Atkins  v.  Kinman,  20  Wend.  249. 

for  taxes.     The  deed  recited  the  sale  8  French  v.  Edwards,  13  Wall.  506 ; 

of   the   property  to   the  highest   bid-  Fisk  v.  Frores,  43  Tex.  340;   Lamar 

der,  when  he  was  authorized  by  the  v.   Turner,  48  Oa.   329, 

statute  only  to  sell  the  smallest  quan-  9  Burette   v.    Briggs,   47    Mo.    356; 

tity   of   the  property  which   any   one  Pringle  v.  Dunn,  37  Wis.  449;   Eob- 

would    take    and    pay    the    judgment  ertson  v.  Gucrin,  50  Tex.  317. 

and  costs,  and   was  held  void  on  its  10  Chase  v.  Whiting,  30  Wis.  544. 
face. 


§  274]  OFFICIAL   CONVEYANCES.  301 

§  273.  Covenants.  There  are  no  implied  covenants  in  official 
deeds,^^  but  where  express  covenants  are  inserted  they  have  been 
held  to  bind  the  officer  personally.^^  Sometimes  the  deed  will  con- 
tain what  is  known  as  the  "trustee  covenant,"  which  is  to  the 
effect  that  the  vendor  has  done  no  act  to  encumber  the  estate. 
If  express  covenants  of  any  kind  are  made  they  should  be  shown 
m  the  abstract. 

§  274.  Sheriff's  Deed — On  Execution.  A  sheriff's  deed  made  in 
pursuance  of  a  sale  on  execution  must  be  to  the  person  to  whom 
the  certificate  of  purchase  was  issued  or  to  his  assignee,  and  if  the 
deed  is  made  to  another,  though  it  recites  that  he  is  the  assignee 
of  the  certificate,  it  is  a  nullity  if,  in  fact,  the  certificate  was  not 
assigned.^*  It  would  seem,  therefore,  that  in  case  of  an  assignment 
the  certificate  thereof  should  affirmatively  appear  of  record  or  its 
absence  be  noted  as  a  substantial  defect.** 

To  establish  a  title  to  land  under  a  sheriff's  sale  on  execution 
all  that  is  necessary  to  be  shown  as  a  general  rule,  is  a  valid  judg- 
ment, or,  as  has  been  held,  a  judgment  by  a  court  of  competent 
jurisdiction,  no  matter  if  it  be  erroneous  on  its  face ;  *^  execution 
duly  issued;*^  and  a  sheriff's  deed.*'''  But  in  all  cases  the  judg- 
ment is  the  foundation  of  the  title,**  and  proof  of  such  judgment 
is  indispensable  to  its  validity.*^  As  the  sheriff  is  only  the  ex- 
ecutor of  a  naked  power  it  is  necessary  that  his  deed  should  show 
substantial  compliance  with  the  terms  creating  the  power  as  well 
as  its  proper  execution,  yet  the  recitals  of  a  sheriff's  deed,  as  a 
general  rule,  are  to  be  regarded  only  as  inducement,^®  and  where 

11  Webster  v.  Conley,  49  111.  13.  ner  v.  Eberhart,  82  111.  316),  yet,  as 

12  Prouty  V.  Mather,  49  Vt.  415 ;  a  precautionay  measure,  it  is  always 
Sumner  v.  Williams,  8  Mass.  162;  well  to  display  these  facts  in  the  ab- 
Mitchell  V.  Haven,  4  Conn.  485;  Aven  stract. 

V.    Beckom,   11    Ga.    1;    Craddock    v.  15  Mayo  v.  Foley,  40  Cal.  281;  and 

Stewart's  adm'r,   6  Ala.   77;    Magee  see  Den  v.  Taylor,  16  N.  J.  L.  532. 

V.  Mellon,  23  Miss.   586.  16  Fischer  v.   Eslaman,   68  111.  78; 

13  Carpenter  v.  Sherfy,  71  lU.  427;  Den  v.  Despreaux,  12  N.  J.  L.  182. 
compare  Bowman  v.  Davis,  39  Iowa,  17  Riddle    v.    Bush,    27    Tex.    675; 
398.  Hughes  v.  Watt,  26  Ark.  228 ;  Splahn 

14  Where  there  has  been  an  assign-  v.  Gillespie,  48  Ind.  397;  Lenox  v. 
ment  of  the  certificate  of  sale  the  re-  Clark,   52   Mo.    115. 

cital  in  the  sheriff's  deed  of  such  cer-  18  Atkins  v.  Himnan,  2  Gilm.   (111.) 

tificate    and    assignment    is    evidence  437;   Leland  v.  Wilson,  34  Tex.  79; 

of  their  existence,  and  after  the  exe-  Todd  v.  Philhour,  24  N.  J.  L.  796. 
cution    of    the    deed    such    certificate  19  Carbine  v.  Morris,  92  111.  555. 

and  assignments  thereof  cease  to  be  20  Leland  v.  Wilson,  34  Tex.  79. 

essential  muniments    of    title    (Gard- 


302  ABSTRACTS   OF   TITLE.  [§  274 

the  deed  siib^antially  complies  with  the  statutory  requireineuts, 
it  is  not  invalidated  by  ambiguous  recitals  or  omissious  which  do 
not  mislead.^^ 

It  is  said  that  the  statute  requiring  recitals  in  a  sheriff's  deed 
was  not  intended  to  make  deeds  void  whicli  do  not  contain  them, 
but  was  only  intended  to  make  the  recitals  evidence  of  the  facts 
recited;  and  when  such  recitals  are  full,  they  dispense  with  the 
necessity  of  introducing  the  judgment  and  execution  in  evidence. 
So  far  as  such  a  statute  requires  recitals  beyond  what  are  necessary 
to  show  the  authority  of  the  officer  to  sell,  it  is  merely  directory ,2' 
and  where  the  deed  discloses  sufficient  to  show  the  authority  to  sell, 
even  though  the  particular  judgment  and  execution  be  not  recited, 
so  long  as  it  appears  to  be  by  virtue  of  a  judgment  and  execution, 
the  sale  and  conveyance  will  be  valid,  if,  at  the  time  of  such  sale, 
the  sheriff  had  in  his  hands  a  valid  execution.^^  Defects  of  form 
are  leniently  regarded,  and  the  instances  are  very  rare,  observes 
Mr.  Freeman,  "in  which  a  deed,  issued  in  pursuance  of  an  execu- 
tion or  chancery  sale,  is  void  for  errors,  defects  or  mistakes  in 
form.  "24 

Where  a  deed  alone  is  relied  upon  it  must  shoAV  upon  its  face 
the  officer's  authority  as  well  as  all  other  essential  requirements 
of  a  valid  sale,^^  but  it  may  always  be  aided  by  the  return  on  the 
execution,26  and  where  the  judgment  and  execution  are  both  shown 
omissions  in  the  deed  are  generally  immaterial,  provided  the  de- 
ficiency is  supplied  by  the  writ  and  return.^''^ 

§  275.  Continued — Acknowledgment.  Unlike  voluntary  con- 
veyances between  individuals,  it  is  essential  to  the  validity  of  a 
sheriff's  deed,  for  land  sold  by  him  under  an  execution,  that  it 
should  have  been  legally  acknowledged.  It  is  true  that  a  sheriff's 
deed  gives  the  vendor  an  inceptive  interest  in  the  land,  but  he  has 
no  right  to  enter,  and  no  claim  upon  the  property,  as  against  the 
former  owner,  until  after  the  deed  is  acknowledged.  The  prop- 
erty is  conveyed  against  the  will  of  the  judgment  debtor ;  the  con- 

21  Allen  V.  Sales,  56  Mo.  28 ;  Jones  24  Freeman,  Void  Jud.  Sales,  §  45. 
V.  Scott,  71  N.  C.  192;  Loomis  v.  Ei-  The  deed,  however,  must  be  what  it 
ley,  24  111.  307;  Keith  v.  Keith,  104  purports  to  be,  hence  a  deed  lacking 
111.  397.  a  seal  conveys  no  title:    Hinsdale  v. 

22  Clark  V.  Sawyer,  48  Cal.  133;  Thornton,  74  N.  C.  167;  Knise  v. 
Jordan    v.    Bradshaw,    17    Ark.    106;  Wilson,  79  111.   233. 

Holman  v.  GUI,  107  111.  467.  26  Hill  v.  Eeynolds,  93  Me.  25. 

23  Jones  V.  Scott,  71  N.  C.  192;  26  Welsh  v.  Joy,  13  Pick.  (Mass.) 
Clark  V.  Sawyer,  48  Cal.  133;  Perkins      477;   Stinson  v.  Ross,  51  Me.  556. 

V.  rubble,   10   Ohio  443.  27  Hayward  v.  Cain,  110  Mass.  273. 


§  276]  OFFICIAL    CONVEYANCES.  303 

veyance  is  not  his  act,  but  the  act  of  the  law ;  and  the  law,  when 
acknowledgment  is  requisite,  must  be  strictly  complied  with.^* 
Where  the  acknowledgment  is  defective  the  deed  is  not  aided  by 
record.2^  Proof  of  official  character  is  rarely  necessary,  however, 
for  the  law  recognizes  such  officers  as  sheriffs  and  deputy  sheriffs, 
and  instruments  executed  by  them  in  the  course  of  their  official 
duties  are  usually  sufficient  in  themselves  to  prove  that  they  were 
the  officers,  in  fact  and  in  law,  which  by  their  acts  they  profess 
to  be.3o 

§276.  Continued— Operation  and  Effect.  A  sheriff's  deed  is 
prima  facie  evidence  that  the  grantee  holds  all  the  title  and  in- 
terest in  the  land  that  was  held  by  the  judgment  debtor  at  the 
time  of  the  rendition  of  the  judgment,  and  operates  back,  by  rela- 
tion, to  the  date  of  such  rendition  so  as  to  extinguish  all  rights  and 
equities  in  and  to  the  premises  derived  from  the  judgment  debtor 
in  the  meantime.^^  And  not  only  the  entire  interest  of  the  judg- 
ment debtor  passes  by  the  deed,  but  also  such  covenants  of  title 
as  run  with  the  land.^^  If  made  to  a  hona  fide  purchaser,  and 
regular  in  itself,  it  is  effectual  as  a  conveyance,  and  can  not  be 
impeached  in  any  collateral  proceeding  for  mere  irregularity,  in 
any  of  the  proceedings,  judgment,  execution  or  return.'' 

It  will  operate  against  the  judgment  debtor  by  estoppel,  and  he 
will  be  precluded  from  setting  up  an  outstanding  title  to  avoid 
the  sale  by  the  sheriff,  or  to  deny  the  title  thereby  acquired  by  the 
purchaser.'*  As  an  exception  to  this  rule,  it  has  been  held,  that 
if,  after  the  sale,  the  judgment  debtor  abandons  the  land,  and 
afterward  returns  to  it,  and  is  sued  in  ejectment,  he  may  show 

28Kyan  v.  Carr,  49  Mo.  483;  Adams  38  Landets  v.  Brant,  10  How.  371; 

V.    Buchanan,    49    Mo.    64.      But    see  Draper  v.  Bryson,  17  Mo.  71 ;  Maurior 

contra,    Stephenson   v.    Thompson,   13  v.  Coon,  16  Wis.  465. 

111.    186,    where    it    is    held    that   the  34  Matney  v.  Graham,  59  Mo.  190; 

deed    may    be    proved    by    other    evi-  Eeid   v,    Heasloy^    2   B.    Mon.    (Ky.) 

dence,  and  though  unacknowledged  it  254;  Jackson  v.  Bush,  10  Johns.  223; 

is  still  valid.  Jackson  v.  Hagaman,   1   Wend.   502; 

29  Samuels  v.   Shelton,  48  Mo.  444.  Gould  v.  Hendriekson,  6  111.  599.    But 

SOOchoa  V.  Miller,  59  Tex.  460.  see    Kenyon    v.    Quinn,    41    Gal.    325, 

31  Shields  v.  Miller,  9  Kan.  390 ;  where  it  is  held,  that  a  statutory  pro- 
White  v.  Davis,  50  Mo.  333;  Ferguson  vision  to  the  effect  that  a  conveyance 
V.  Miles,  3  Gilm.  (111.)  358;  Miller  of  land  in  fee  simple  shall  convey 
V.  Wilson,  32  Md.  297;  Kirk  v.  Van-  the  legal  estate  afterward  acquired  by 
berg,  34  111.  440.  the  grantor,  has  no  application  to  a 

32  Whiting  v.  Butler,  29  Mich.  122;  sheriff's  deed  made  under  execution 
White  V.  Whitney,  3  Met.  81;  Leport  sale. 

V.  Todd,  32  N.  J.  L.  124. 


304  ABSTRACTS   OF   TITLE.  [§  276 

an  outstanding  title,  provided  he  also  shows  that  he  has  taken  pos- 
session and  holds  under  it,  and  the  same  rule  applies  to  a  pur- 
chaser holding:  under  the  judgment  debtor  or  defendant  in  ex- 
ecution.'* 

The  recording  of  a  sheriff's  deed  operates  as  constructive  notice 
only  to  those  who  hold  or  claim  under  the  judgment  defendant ; 
strangers,  and  those  claiming  under  an  independent  or  hostile  title^ 
are  not  affected  thereby.'^ 

§  277.  Continued — Imperfect  Description.  The  only  remedy 
for  a  false  description  in  a  sheriff's  deed  is  to  obtain  a  new  deed 
in  the  court  whence  the  process  issued.  Equity  will  not  aid  the 
imperfect  execution  of  a  statutory  power.''  It  follows,  therefore, 
that  if  the  description  fails  to  show  with  certainty  what  property 
was  in  fact  sold,  or  if  in  order  to  ascertain  such  fact  it  becomes 
necessary  to  institute  an  extraneous  inquiry,  the  deed  is  void  '' 
and  no  title  will  pass  thereunder.  Tt  would  seem,  however,  that 
the  rule  will  not  prevent  the  correction  of  a  sheriff's  deed  where 
the  grantee,  through  mistake,  has  been  erroneously  described  if  th« 
execution  and  all  proceedings  under  it  are  regular.'®  Where  the 
deed  has  been  lost  before  registration,  the  officer  may,  it  seems, 
execute  a  substitute.*** 

§  278.  Statutory  Sheriff's  Deeds.  To  overcome  the  consequence 
of  mis-recitals,  prevent  collateral  impeachment,  and  give  the  full 
desired  effect  of  conveyances  by  the  sheriff,  the  legislatures  of  a 
majority  of  the  States  have  prescribed  certain  forms  of  ofSeial 
deeds  and  declared  their  legal  effect.  As  in  case  of  statutory  forms 
of  official  deeds  between  individuals,  these  instruments  contem- 
plate but  little  verbiage,  the  statute  supplying  what  was  formerly 
obtained  by  long  and  technical  recitals.  Only  enough  matter  of  in- 
ducement is  given  to  identify  the  judgment,  execution,  and  sale,  and 

86  Gould  V.  Hendriekson,  96  111.  599.       Jackson   v.    Delancey,   13   Johns.    (N. 

36  Gardner  v.  Jaques,  42  Iowa  577.      Y.)    536;    Cunningham    v.   MeCollum, 

37  Ware    v.    Johnson,    55    Mo.    500.       98  Ind.  38. 

But  where  a  sheriff  executed  a  deed  39  See,  Spaulding  Mfg.  Co.  v.  Gold- 

at   the    proper   time,    but   omitted    to  bold,  92  Ark.  63,  121  S.  W.  1063,  92 

affix  a  seal  or  scrawl  thereto,  the  sue-  L.  E.  A.   (N.  S.)    282.     In  this  case 

cessor  of  the  sheriff  executed  another  a    partnership,    instead    of    the    indi- 

deed  in  proper  form,  and  it  was  held  vidual  members  thereof,  was  by  mis- 

that  this   subsequent  deed  would  re-  take   named   as   grantee, 

late  back  to  the  date  of  the  first  one :  40  McMillan   v.   Edwards,  75  N.   C. 

Kruse  v.  Wilson.  79  111.  233.  81. 

38  Evans    v.    Ashley,    8    Mo.    177 ; 


§278] 


OFFICIAL    CONVEYANCES. 


305 


to  show  the  authority  of  the  officer,  while  the  granting  portion  is 
confined  to  the  fewest  legal  essentials.  The  deed,  in  itself,  is  little 
else  than  an  abstract,  and  contains  scarcely  anything  that  must  not 
also  be  shown  in  presenting  a  synopsis  of  it.  The  example  which 
follows  is  an  abstract  of  the  form  now  in  use  in  Illinois,  but  which, 
so  far  as  the  observation  of  the  writer  has  gone,  differs  but  slightly 
from  those  now  employed  in  other  States. 


Seth  Hanchett,  Sheriff  of  CooV 
County,  III., 

to 
William  B.  Denton. 


Sheriff's  Deed. 
Dated,  etc. 


Recites  that  whereas,  A.  B.  did,  at  the  May  term  of  the  Circuit 
Coiirt  of  Cook  County,  1880,  recover  a  judgment  against  C.  D. 
for  the  sum  of  $100.00,*^  and  costs  of  suit,  upon  which  an  execu- 
tion was  issued  dated  June  2,  1880,  directed  to  said  sheriff  to 
execute,  hy  virtue  of  which  the  said  sheriff  levied  upon  the  prem- 
ises'^ hereinafter  described;  and  the  time  and  place  of  the  sale 
thereof  having  been  duly  advertised  according  to  law,  the  same 
were  struck  off  and  sold  to  William  B.  Denton,  he  being  the  highest 
and  best  bidder  therefor. 

Therefore,  said  sheriff,  in  consideration  of  the  premises,  conveys 
to  said  second  party  the  following  described  parcel  of  land  [de- 
scribing the  same]. 

Acknowledgment. 


The  legal  effect  of  this  brief  deed,  as  declared  by  statute,  is  to 
convey  to  the  grantee  therein  named,  all  the  title,  estate,  and  in- 
terest of  the  person  against  whom  the  execution  was  issued,  of 
every  nature  and  kind,  in  and  to  the  lands  thereby  conveyed,  but 
implies  no  covenants  on  the  part  of  the  officer  executing  same. 
It  is  further  prima  facie  evidence  that  the  provisions  of  law  in 


41  A  statutory  provision  which  pre- 
scribes the  form  of  a  sheriff's  deed, 
so  far  as  it  requires  the  amount  of 
the  judgment  to  be  inserted  in  the 
deed,  is  merely  directory.  It  is  suf- 
ficient if  it  clearly  appears,  that  the 
deed  is  made  by  the  officer  in  his 
official  capacity,  and  in  consumma- 
tion of  the  legal  proceedings  upon 
which  it  is  founded  with  such  refer- 
ences to  the  proceedings  themselves 
that  they  may  be  readily  found  and 
Warvelle  Abstracts — 20 


identified:    Holman    v.    Gill,    107    111. 
467. 

42  This  word,  although  erroneously 
employed,  is  the  one  generally  pro- 
scribed by  statute,  and,  when  such 
is  the  case,  should  be  shown  in  the 
abstract  as  found  in  the  deed.  It  is 
only  another  illustration  of  the  care- 
less and  bungling  manner  in  which 
legal  terms  and  phrases  are  some- 
times employed  by  the  law-makers. 


306  ABSTRACTS   OP   TITLE.  [§  278 

relation  to  tlie  sale  of  the  property  for  Avliich  it  is  given  were 
eompliod  Avith ;  and  in  cnso  of  the  loss  or  destruction  of  the  record 
of  the  judgment,  or  of  the  execution  or  levj'^  thereon,  is  prima  facie 
evidence  of  the  recovery  and  existence  of  the  judgment,  and  of  the 
issuing  and  levy  of  the  execution  as  therein  recited. ^^ 

The  abstract  of  a  title  acquired  by  a  sheriff's  deed  should  con- 
sist, in  order  to  show  its  full  and  proper  devolution,  of  a  synopsis 
of  the  judgment  recovered  with  note  of  the  issuance  of  execution ; 
the  certificate  of  levy,  where  this  is  used,  or  the  return  on  the  ex- 
ecution ;  the  certificate  of  sale,  and  finally  the  sheriff's  deed.  Prac- 
tical examples  of  these  several  steps  will  be  found,  under  proper 
headings,  in  other  parts  of  this  work. 

§279.  Sheriff's  Deed — Under  Decree.  Though  a  master,  com- 
missioner or  referee  is  the  medium  through  which  a  court  of  chan- 
cery ordinarily  executes  its  decrees,  the  duty  not  infrequently  de- 
volves upon  the  sheriff  either  by  virtue  of  his  office  or  through  spe- 
cial appointment.  While  acting  under  a  decree  he  occupies  the 
same  position  as  a  commissioner,  and  is  but  a  ministerial  officer  of 
the  court,  to  whom  he  must  make  reports  of  his  acts  and  by  whom 
they  must  be  confirmed  before  conveyances  can  be  lawfully  made.** 
Tlis  deed,  like  a  master's,  recites  his  authority,  details  his  acts, 
and  takes  effect  as  a  conveyance  in  the  same  manner.*^ 

§  280.  Masters',  Commissioners'  and  Referees'  Deeds.  The  con- 
veyances of  a  master  in  chancery,  commissioner,  or  referee,  differ 
in  no  material  respect  from  those  of  a  sheriff  acting  under  a  decree, 
the  power  exercised  being  the  same  in  each  instance,  and  the  prin- 
ciples which  govern  the  one  operating  with  equal  force  upon  the 
others.  Like  the  conveyances  of  the  sheriff,  their  deeds  are  with- 
out warranty,  or  any  terms  except  those  imposed  by  law,  and  they 
convey  only  such  titles  as  the  defendant  possessed.  The  recitals 
of  this  class  of  deeds  are  usually  long  and  verbose  and  should  be 
judiciously  condensed  by  the  examiner  to  show  all  that  is  material 
in,  as  few  words  as  possible.  The  special  formal  parts  are  those 
which  relate  to  the  title  and  authority  of  the  officer,  and  the  re- 
citals showing  a  due  compliance  with  the  decree.  In  the  abstract 
the  deed  immediately  follows  the  court  proceedings  and  certifi- 
cate of  sale,  and  may  be  shown  briefly,  as  follows : 

4SE.  S.  111.  1874,  Ch.  77.  of   other  ministerial   officers,   and   the 

44  Taylor  v.  Oilpin,   3   Met.    (Ky.)  chapter   on  "Execution   and   Judicial 
544;  Hunting  v.  Walker,  .^.3  Md.  60.  Sales." 

45  See  the  remarks  relative  to  deeds 


§  281]  OFFICIAL   CONVEYANCES.  307 


Henry  W.  Bishop,  as  Master' 
in  Chancery  of  the  Circuit 
Court  of  the  United  States 
for   the    Northern    District 
of  Illinois, 

to 

Silas  Wegg,  Jr. 

Doc.   124,354. 


Master's  Deed. 

Dated  June  10,  1881. 

Recorded,  July  12,  1881. 

Book  410,  page  65. 

Sets  forth  that  in  pursuance 
of  a  decree  entered  March  13, 
1881,  hy  said  Court  in  a  certain 
case  then  pending  therein  wherein 
John  Doe  was  Complainant,  and 
Richard  Roe,  Defendant,  the  said  Master  duly  advertised,  ac- 
cording to  law,  the  lands  and  tenements  hereinafter  described, 
for  sale  at  public  auction  to  the  highest  and  best  bidder,  for  cash, 
at  two  o'clock  P.  M.,  on  Monday,  June  1,  1880,  at  the  north  door 
of  the  U.  S.  Custom  House  and  Post  Office,  in  the  City  of  Chi- 
ago.  Cook  County,  Illinois.  That  at  the  time  and  place  so  as 
aforesaid  appointed  for  said  sale,  the  said  blaster  attended  to 
make  the  same,  and  offered  said  premises  for  sale  at  puMic  auc- 
tion, to  the  highest  and  best  bidder,  for  cash,  and  thereupon  Silas 
Wegg,  Jr.,  offered  and  bid  therefor  $125.00,  and  that  being  the 
highest  and  best  bid  offered,  said  Master  accordingly  struck  off 
and  sold  to  said  Silas  Wegg,  Jr.,  for  said  sum  of  money,  the 
said  premises,  and  did  thereupon  sign,  seal  and  deliver  to  said 
Silas  Wegg,  Jr.,  the  usual  Master's  Certificate  therefor,  and  that 
said  premises  have  not  been  redeemed  from  said  sale.  Now,  there- 
fore, in  consideration  of  the  premises  conveys:  [Here  follows  the 
description  of  the  property.] 

Certificate  of  acknowledgment  dated  June  10,  1881. 

§  281.  Trustees.  A  trustee  is  defined  as  a  person  in  whom  some 
estate,  interest,  or  power  in  or  affecting  property  of  any  descrip- 
tion is  vested  for  the  benefit  of  another,*^  and  though  the  name  is 
technically  applied  to  a  particular  class,  it  also,  to  a  certain  ex- 
tent, comprises  executors,  administrators,  guardians,  assignees, 
etc.  Where  the  legal  title  of  a  trustee  is  created  by  the  owner 
of  the  property,  the  right  of  the  trustee  to  enforce  it  will  be  recog- 
nized everywhere ;  but  where  such  title  is  derived  solely  from  some 
act  of  the  law,  the  effect  of  that  act  is  confined  to  the  territorial 
jurisdiction  over  which  the  law  extends.*'  Upon  the  death  of  a 
trustee,  the  legal  title  to  the  estate  devolves  upon  his  heir  at  law; 
and  the  heir  takes  the  same  estate,  and  is  subject  to  exactly  the 
same  duties  and  responsibilities  as  his  ancestor.** 

46  2  Bou.  Law  Diet.  616.  48  Watkins     v.     Specht,     7     Coldw. 

47  Chirtis  V.  Smith,  6  Blaekf.  (Ind.)  (Tenn.)  585;  MeMullcn  v.  Lank,  4 
537.  Houst.   (Del.)   648.     By  force  of  the 


308  ABSTRACTS   OP   TITLE,  [§  281 

IJut  in  case  of  more  than  one  trustee,  the  rule  would  be  dif- 
ferent, lor  by  the  conmion  law,  and  usually  by  the  statute  as 
well,  the  estate  of  trustees  is  held  in  joint  tenancy,  and  hence, 
upon  the  death  of  one  of  several  trustees  nothing  passes  to  the 
heir  or  personal  representatives,  but  the  whole  estate  devolves 
upon  the  survivors.*® 

Being  founded  on  personal  eonfidenee,  it  necessarily  results  that 
a  trustee  can  not  delegate  his  trust  to  others,^*'  neither  can  he 
profit  by  his  trust  estate,*^  nor  become  a  purchaser  at  any  sale 
thereof  by  hini,^^  while  the  power  under  which  he  acts  must  in 
all  cases  be  strictly  pursued  to  render  such  acts  valid.^^ 

A  joint  power  of  sale  must  be  executed  by  all,  provided  all  are 
living  and  in  condition  to  act,^*  unless  the  instrument  creating 
the  trust  provides  otherwise,^*  for  the  interest  held  by  several 
trustees  in  an  entirety,  and  can  only  pass  as  a  Avhole ;  hence  all  the 
trustees  living,  having  an  interest  in  the  property,  must  join  in 
the  conveyance,  otherwise  it  will  be  wholly  inoperative.^^  But 
in  case  of  the  death  of  one  or  more  of  the  trustees,  the  survivor 
or  survivors  will  hold  the  trusts  and  may  execute  the  powers.*"' 
A  deed  by  the  survivors,  representing  the  entire  title,  will  be  good, 
even  though  they  are  authorized  to  fill  the  vacancy,  as  it  is  only 
where  the  terms  of  the  power  creating  the  trust  imperatively 
require  the  vacancy  to  be  filled,  that  the  acts  of  the  survivors  will 
be  invalid.*^ 

The  questions  suggested  by  the  foregoing  statements  are  many, 

statute   the   trust   sometimes   vests   in  51  Faucett  v.  Faucett,  1  Bush  (Ky.) 

some  tribunal  in  the  county  in  which  511. 

the  trust  property  is  situated,  which,  62  Tenvelliger  v.  Brown,  44  N.   Y. 

upon  the  application  of  some  person  237.     This  is  the  universally  accepted 

interested  in  the  trust,  forthwith  ap-  doctrine,  but  is  subject  to  some  quali- 

points    a    successor    to    the    deceased  fii-ations,    the    law    not    exacting    the 

trustee,  whereupon  the  trust  vests  in  same  rigid  degree  of  strictness  in  all 

the  newly  appointed  trustee:    Collier  the  States.     Clark  v.  Clark,  65  N.  C. 

V.  Blake    14  Kan.  250,  655,     and     see     "Trustees     as     Pur- 

49  Colder  v.  Brewster,  105  111.  419.  chasers,"  infra. 

BO  Grover  v.  Hale,  107  111.  638.   But  ^3  Huntt  v.  Townshend,  31  Md.  336. 

where   the   trustee   conveys   the   legal  54  Learned  v.  Welton,  40  Cal.  349. 

title  to  one  having  knowledge  of  the  56  Gould  v.  Mather,  104  Mass.  283 

trust,   or  where   such  other  person   in  56  Golder  v.  Brewster,  105  111.  419 ; 

any  manner  acquires  the  legal  estate  Brennan  v.  Willson,  71  N.  Y.  '502. 

with    such    knowledge,    he    holds    the  57  Lane  v.  Debenham,  11  Hare,  188. 

property  subject  to  the  trust  and  may  58  Colder  v.  Brewster,  105  111.  419. 
be  compelled  in  equity  to  execute  it : 
Ryan  v.  Doyle,  31  Iowa  53 ;  Smith  v. 
Walser,  49  Mo.  250. 


§  282]  OFFICIAL   CONVEYANCES.  309 

and  will  readily  present  themselves  to  counsel  upon  the  exam- 
ination of  an  abstract.  To  satisfactorily  solve  them  the  grant  of 
power  must  be  exhibited  in  the  chain,  or,  if  made  prior  to  the 
commencement  of  the  search,  a  requisition  for  its  production  must 
be  made,  that  it  may  satisfactorily  appear,  from  actual  inspection, 
that  the  proceedings  of  the  trustees  have  been  regular  and  in  con- 
formity to  the  terms  of  the  instrument  creating  the  trust. 

§  282.  Transfers  of  the  Legal  Estate  by  Trustees.    The  doctrine 

of  the  obligation  of  purchasers  to  observe  the  proper  application 
of  the  purchase  money,  in  cases  of  sales  by  trustees  and  other 
fiduciaries,  was  formerly  very  intricate,  abounding  in  many  tech- 
nicalities and  subtilties;  but  these,  in  a  large  measure,  have  been 
swept  away  by  special  statutes  in  England,  while  in  the  United 
States  the  old  English  doctrine  has  rarely  been  administered  except 
in  cases  of  fraud  in  which  the  purchaser  was  a  participant.  The 
general  rule  now  is,  and  for  years  past  has  been,  that  a  purchaser 
who  in  good  faith  pays  the  purchase  money  to  a  person  authorized 
to  sell,  is  not  bound  to  look  to  its  application;  and  there  is  no 
difference  in  this  respect  between  lands  charged  in  the  hands  of 
a  devisee  with  the  payment  of  debts,  and  lands  devised  to  a  trustee 
to  be  sold  for  that  purpose.^^ 

"The  present  well-established  rule  of  law  in  regard  to  trust 
estates  is,"  says  Mr.  Redfield,^'*  "that  when  the  trustee  holds  the 
trust  estate  for  the  purpose  of  sale  and  conversion  into  money,  or 
with  a  power  of  sale  and  conversion,  any  one  w^ho  in  good  faith 
accepts  such  transfer  upon  adequate  compensation,  will  acquire  a 
valid  title.  But  if  the  trustee  has  no  power  of  sale  the  purchaser 
will  acquire  no  title  unless  he  show  that  the  purchase  money  has 
been  applied  to  the  purposes  of  the  trust.  It  is  this  which  marks 
the  true  distinction  between  the  cases,  where  the  purchaser  i>. 
bound  to  see  to  the  application  of  the  purchase  money  and  where 
he  is  not.  For  if  the  trustee  has  no  power  of  sale,  any  transfer  by 
him  will  be  wholly  inoperative  and  the  trust  will  attach  to  the 
trust  property  in  the  hands  of  the  vendee  the  same  as  in  the  hands 
of  the  trustee,  until  it  appears  that  the  money  paid  by  the  vendee, 
to  the  full  value  of  the  trust  property,  has  been  applied  to  the 
purposes  of  the  trust. ' '  ^^ 

59CTyder'8  Appeal,  11  Pa.  St.  72;  60  3  Eedf.  on  Wills  (3d  Ed.),  620. 

Champlin    v.    Haight,    10    Paige    (N.  61  And  see,  Hughes  v.  Tabb,  78  Va. 

y.),  275;  White  v.  Carpenter,  2  Paige  325;    Turner  v.   Iloyle,  95   Mo.   337; 

(N.  Y.),  217;   Gardner  v.  Gardner,  3  Jacks  v.  State,  44  Ark.  61. 
Mason  (C.  Ct.),  178,  and  see  Warvelle 
on  Vendors,   §  573. 


310  ABSTRACTS   OP   TITLE.  [§  283 

§  283.  Power  of  Sale  and  Trust  of  Sale  Distinguished.    In  the 

execution  of  testamentary  trusts  questions  of  title  are  frequently 
raised  on  the  construction  of  the  authority  under  which  the  trustee 
effected  the  sale,  but  the  same  questions  may  sometimes  arise  under 
deeds  of  trust.  "The  more  common  case  of  trusts  with  power  of 
sale,"  observes  Mr.  Eedfield,^^  "is  where  the  te-jtator  devises  his 
estates,  together  with  all  his  personalty,  directing  that  the  latter 
be  first  applied  in  the  payment  of  debts  and  legacies;  and  in  de- 
fault of  it  proving  sufficient,  that  the  real  estates  be  sold  by  the 
trustees,  either  generally,  in  their  discretion,  or  in  some  order 
named  in  the  will."  In  such  case,  the  learned  author  contends 
that  it  would  be  the  duty  of  the  trustees  to  assure  themselves  that 
a  deficiency  in  the  personalty  has  really  occurred  before  they  can 
properly  proceed  to  sell  real  estate,  and  distinguishes  between  a 
trust  and  power  of  sale  in  this  manner:  "A  power  of  sale,  in 
the  event  of  the  personal  estate  proving  insufficient  to  pay  debts 
or  legacies,  or  both,  is  a  power  depending  upon  a  condition  prece- 
dent, and  will  not  attach  unless  the  condition  occur;  and  a  sale 
under  such  a  power,  when  the  condition  had  not  in  fact  occurred, 
will,  of  course,  convey  no  title.  It  is,  therefore,  in  a  case  of  this 
kind  essential,  that  all  persons  interested  in  the  purchase  and  in 
acquiring  a  good  title,  should  assure  themselves  that  the  power  has 
really  attached.  In  such  a  case  the  receipt  of  the  money  by  the 
appointee  will  have  no  effect  upon  the  passing  of  the  title,  and 
wiU  commit  no  one  to  its  application  or  repayment  except  the 
person  receiving  it.  But  in  the  case  of  a  trust  for  sale  under  a 
will,  the  title  having  passed  to  the  trustee,  the  title  will  pass  upon 
any  such  sale  as  rests  upon  an  apparent  occurrence  of  the  emer- 
gencies justifying  a  sale;  and  the  payment  of  the  money  b\'  the 
purchaser  to  the  trustee,  and  his  receipt  for  same,  will  exonerate 
the  purchaser  from  all  responsibility. ' '  ^^ 

The  exercise  of  trusts  and  powers  is  now  very  generally  con- 
trolled by  statute.  A  trust  not  allowed  by  the  statute  is  wholly 
invalid  and  no  estate  vests  in  the  trustees;  but  a  trust  directing  or 
authorizing  the  performance  of  any  act  which  may  be  lawfully 
performed  under  a  power,  will  still  be  valid  as  a  power  in  trust,^* 
subject  to  the  provisions  of  the  statute  in  relation  to  powers. 
"Where  the  trust  given  does  not  purport  to  be  a  trust  of  sale,  but 
simply  a  power  in  trust,  a  deed  made  by  the  executor  under  it, 

62Eedf.   on  Wills   (3d  Ed.),  551.  64  Downing   v.   Marshall,   23   N.    Y. 

63Redf.    on   Wills    (3d   Ed.),    552,       366. 
citing    Walker    v.    Smallwood,    Amb. 
(Eng.   Ch.),  676. 


§  284]  OFFICIAL    COISrVEYANCES.  311 

will  convey  title  to  the  purchaser,  and  this,  notwithstanding  the 
fact  that  the  land  in  question  is  devised  absolutely  by  the  will.^^ 

§284.  Trustees'  Deeds.  Titles  derived  through  trustees'  deeds 
require  close  scrutiny,  for  whe^e  a  deed  of  trust  minutely  and 
particularly  prescribes  the  circumstances  under  which,  and  the 
manner  in  which,  the  trustees  shall  have  authority  to  sell  the  trust 
property,  they  have  no  power  or  authority  to  dispose  of  such 
property  under  any  other  circumstances  or  in  any  other  manner.^^ 
Fiduciaries  and  trustees,  if  they  exceed  or  violate  their  authority, 
are  responsible,  though  no  bad  faith  prompted  their  acts;  and 
those  who  deal  with  them  on  the  faith  of  the  trust  estate,  must  be 
aware  that  they  exercise  only  limited  and  delegated  poAvers,  and 
are  bound,  at  their  peril,  to  take  notice  of  such  powers  and  see 
to  it  that  they  confine  themselves  within  their  scope.®''^ 

A  trustee  having  once  accepted  the  trust  in  any  manner,  a  pur- 
chaser can  not  safely  dispense  with  his  concurrence  in  a  sale  of 
the  trust  estate,  notwithstanding  he  may  have  attempted  to  dis- 
claim, and  although  he  may  have  released  his  estate  to  his  co-trus- 
tees. All  the  trustees,  in  case  of  several,  must  unite  in  a  disposal 
of  the  trust  property,  and  a  deed  by  two,  while  a  third  is  living, 
is  not  valid.  The  trustees  take  as  joint  tenants,  and  must  all  unite 
in  the  execution  of  the  trust,  and  especially  in  a  deed  of  lands. 

A  trustee  can  not  delegate  any  duty,  unless  the  power  to  dele- 
gate is  expressly  given,  which  involves  the  exercise  of  any  discre- 
tion or  judgment.  Mere  mechanical  or  ministerial  duties  may  be 
performed  by  others.  The  particular  medium  of  advertisement, 
the  manner  of  conducting  the  sale,  the  best  method  of  offering  the 
property,  the  question  of  postponement  of  the  sale,  and  the  sale 
itself,  are  matters  regarding  which,  when  they  are  not  prescribed 
by  the  instrument  under  which  he  acts,  special  trust  and  confidence 
are  reposed  in  the  trustee;  and  they  can  not  be  delegated  to  an 
agent.68  j^w  these  duties  are  usually  matters  of  recital  in  the 
trustee's  deed,  and  it  is  advisable  that  they  be  shown  in  the  abstract 
substantially  as  there  stated. 

Where  the  trust  deed  forms  a  portion  of  the  examination,  the 
trusts  and  conditions  should  fully  appear  in  the  abstract  of  that 

65  Crittenden  v.  Fairchild,  41  N.  Y.  66  Huntt  v.  Townshend,  31  Md.  336. 

289.     In  this   case  it  was  held   that  67  Owen  v.  Roed,  27  Ark.  122;  Ver- 

such  power  was  not  inconsistent  with  non  v.  Board  of  Police,  47  Miss.  181; 

the   devise,  but  the  estate   vested   in  Ventres  v.  Cobb,  105  111.  33. 

the  devisees,  subject  to  the  execution  68  Bales    v.    Perry,    51    Mo.    449; 

of  the  power.  Grover  v.  Hale,  107  111.  638. 


312  ABSTRACTS   OF   TITLE.  [§  284 

document,  aiid  reference  to  them  will  be  sufficient  in  preparing  the 
s3''nopsis  of  the  trustee's  deed.  Should  the  trust  deed  not  be  in- 
eluded  in  the  examination  the  conditions  as  recited  in  the  deed  may 
be  given,  or  a  note  substantiallj'  embodying  them  may  be  appended, 
as  per  the  example  shown.  Here  is  an  example  of  a  trustee's  deed 
made  on  foreclosure  and  in  pursuance  of  a  power  of  sale: 


PUny  B.  Smith, 

Trustee, 
to 
William   Thompson, 
Document  1008. 


Trustee's  Deed. 

Bated  Jan.  5,  1882. 
-    Recorded  Jan.  6,  1882. 

Book  500,  page  520. 

Recites,  that  John  Peterson 
and  Maria,  his  wife,  hy  a  Trust 
Deed,  dated  May  1,  1880,  and  recorded  May  3,  1880,  in  hook  410, 
page  512,  conveyed  to  Pliny  B.  Smith,  as  Trustee,  all  the  lands 
hereinafter  described,  to  secure  the  payment  of  $1,000,  to  Iliram 
Jones,  in  one  ye-ar  from  May  1,  1880,  evidenced  hy  said  Peterson's 
one  promissory  note  of  even  date  with  said  Trust  Deed. 
Also  sets  forth  the  power  of  sale  in  said  Trust  Deed  contained .^^ 
And  default  having  been  made  in  the  payment  of  said  note,  and 
Jliram  Jones,  the  legal  holder  thereof,  having  applied  to  frst 
party,  as  such  Trustee,  to  cause  the  said  lands  herein  descrihrd  lo  he 
sold  for  the  purposes  mentioned  in,  and  in  accordance  with  the 
provisions  of  said  Trust  Deed^^  first  party  on  Dec.  5,  1881,  caused 
a  due  notice  to  he  puhlished  in  the  Legal  Adviser,  a  newspaper 
published  (printed)  in  the  City  of  Chicago,  Cook  County,  Illinois, 
that  sa/id  lands  hereinafter  described  would,  on  Jan.  5,  1882,  at 
on»  o'clock  P.  M.,  be  sold  at  public  auction,  at  the  North  door  of 
the  Court  House^'^  in  the  City  of  Chicago,  Ills.,  to  the  highest 
bidder  for  cash,  hy  virtue  of  the  power  and  authority  in  him  vested 
hy  said  Trust  Deed;  which  said  notice  was  (printed)  puhlished  for 

69  The  power  of  sale  may  be  set  out  jiroperty  for  sale  his  act,  will  be  un- 
here  as  directed,  but  if  the  trust  deed  authorized  under  the  power,  and  the 
has  already  been  exhibited  in  the  sale  may  be  avoided  and  set  aside  as 
chain,  this,  of  course,  would  be  un-  made  in  violation  of  its  terms:  Equi- 
neccssary,  and  the  simple  recital  table  Trust  Co.  v.  Fisher,  106  111.  189. 
shown  in  the  text  will  be  sufficient.  '1  A  power    to   sell  "at  the   north 

70  This  is  an  important  recital  and  door  of  the  court  house, ' '  may  be 
should  always  be  set  out.  Where  a  well  executed,  if  the  building  has 
trust  deed  gives  the  trustee  the  power  meantime  been  destroyed  by  fire,  by 
to  advertise  and  sell  the  mortgaged  a  sale  at  the  ruins  of  the  north  door, 
premises  on  default  of  payment,  when  The  meaning  of  the  phrase  consists 
so  requested  by  the  holder  of  the  in-  in  identifying  a  place  of  sale,  not  in 
debtedness,  and  the  trustee,  without  the  identity  of  the  door:  Waller  v. 
being    so     requested,    advertises    the  Arnold,  71   111.  350. 


§  284]  OFFICIAL   CONVEYANCES,  313 

thirty  days  in  said  paper,  commencing  on  Dec.  5,  1881,  and  ending 
on  Jan.  4,  1882,  the  date  of  the  first  paper  containing  the  same 
being  Dec.  5,  1881,  and  of  the  last  of  Jan.  4,  1882. 

And  said  lands  having  been,  by  said  party,  on  Jan.  5,  1882,  at 
one  o'clock  P.  M.,  in  the  manner  prescribed  in  and  by  said  Trust 
Deed,  and  at  the  place  last  aforesaid,  in  pursuance  of  said  notice, 
offered  for  sale  at  public  auction,  to  the  highest  bidder  for  cash, 
and  second  party  having  been  the  highest  bidder  therefor,  and 
having  bid  for  the  tract  hereinafter  named,  $1,050,  he  was  duly 
declared  the  purchaser  thereof. 

Now,  therefore,  in  consideration  of  the  sum  so  bid,  grants,  bar- 
gains, sells,  aliens,  rem/ises,  releases  and  confirms  the  following 
described  land  in  Chicago,  Cook  County,  Illinois,  to  wit:  [Here 
set  out  the  description  of  the  property  conveyed.] 

Together,  with  all  and  singular,  the  tenements,  hereditaments, 
and  appurtenances  thereunto  belonging,  as  the  same  are  described 
and  conveyed  in  and  by  the  said  Trust  Deed;  and  also,  all  the 
estate,  right,  tiile,  interest,  property,  claim,  and  demand  whatso- 
ever, both  in  law  and  equity,  of  the  said  John  Peterson  and  wife, 
as  well  as  of  the  said  first  party,  of,  in,  and  to  the  above  described 
premises,  with  the  appurtenances,  as  fully  to  ail  intents  and  pur- 
poses, as  first  party  hath  poiver  and  authority  to  grant,  sell,  and 
convey  the  same  by  virtue  of  the  said  Trust  Deed. 

Ackgt.,  dated  Jan.  5,  1882. 

Should  no  trust  deed  be  shown  in  the  examination,  append  the 
power  of  sale  under  which  the  trustee 's  deed  is  given,  as  follows : 

Note. — The  Trust  Deed  from  John  Peterson  and  wife  to  PUny 
B.  Smith,  dated  May  1,  1880,  and  recorded  May  2,  1880,  as  Doc. 
252,  in  book  410  of  Records,  page  512,  provides  in  trust,  that  in 
case  of  default  in  the  payment  of  said  note,  or  any  part  thereof, 
according  to  the  tenor  and  effect  of  said  note,  then,  on  application 
of  the  legal  holder  of  said  note,  to  sell  and  dispose  of  the  said 
premises,  and  all  the  right,  title,  benefit  and  equity  of  redemption 
of  said  first  party,  their  heirs  and  assigns  therein,  at  public  auction, 
at  the  North  door  of  the  Court  House,  in  Chicago,  Illinois,  or  on 
said  premises,  as  may  be  specified  in  the  notice  of  such  sale,  for  the 
highest  and  best  price  the  same  will  bring  in  cash,  at  least  thirty 
days'  public  notice  having  been  previously  given  of  the  tim^  and 
place  of  such  sale,  by  advertisement  in  one  of  the  daily  or  weekly 
newspapers  at  that  time  published  in  said  City  of  Chicago;  and  to 
make,  execute  and  deliver  to  the  purchaser  or  purchasers  at  such 


314  ABSTRACTS  OF   TITLE.  [§  284 

sale,  good  and  sufficient  deed  or  deeds  of  conveyance  for  the  prem- 
ises sold,  *  *  *  *  ichich  sale  or  sales  so  made  shall  be  a  per- 
petual bar,  both  in  law  and  in  equity,  against  the  said  first  party, 
their  heirs  and  assigns,  and  all  other  persons  claiming  the  prem- 
ises aforesaid,  or  any  part  thereof,  by,  from,  through,  or  under 
said  first  party,  or  any  of  them. 

Second  party,  with  or  without  re-advertising,  is  hereby  author- 
ized and  empowered  to  postpone  or  adjourn  said  sale  from  time  to 
time  at  his  discretion,  and  also  to  sell  said  premises  entire,  without 
division  or  in  parcels,  as  he  may  think  best. 

In  case  of  a  breach  of  any  of  the  covenants  or  agreements 
herein,  by  first  party,  said  premises  shall  be  subject  to  sale  and 
ccmveyance,  on  request  of  the  legal  holder  of  said  note,  in  like 
manner  and  with  the  same  effect  as  if  the  said  indebtedness  had 
matured. 

First  party  covenants  and  agrees  that  in  case  of  a  sale  and 
conveyance,  as  aforesaid,  of  said  premises,  the  deed  and  deeds  of 
conveyance  made  in  pursuance  of  such  sale  shall  be  prima  facie 
evidence  of  the  due  compliance  with  and  performance  of  the  terms, 
conditions  and  requirements  of  this  deed  of  trust,  by  second  party 
or  his  successor  in  trust  aforesaid,  in  advertising  and  making  such 
sale  and  conveyance,  to  the  extent  of  the  recitals  contained  in  such 
deed  or  deeds. 

Where  a  trustee's  deed,  made  upon  a  sale  under  a  valid  deed 
of  trust,  shows  that  such  sale  was  conducted  in  strict  conformity 
with  the  power  contained  in  the  trust  deed,  and  the  purchaser 
has  had  no  notice  of  any  irregularities  in  the  sale,  his  title  will 
be  protected,  as  respects  such  irregularities,  if  anj-  there  were,  as 
that  of  an  innocent  purchaser ;  '^  but  the  payment  of  the  debt 
secured  bj'  a  deed  of  trust  defeats  the  power  of  sale,  and  a  pur- 
chaser at  such  sale  must  see  to  it  that  the  grantor  in  the  trust  deed 
is  in  default,  aud  that  some  part  of  the  debt  is  due  and  unpaid.'''^ 

Deeds  similar  to  the  foregoing  will  be  found  on  the  records  of 
many  of  the  states,  as  this  method  was  formerly  of  wide  and  con- 
stant use.  Where  the  transaction  is  ancient  some  condensation 
may  be  permitted,  but,  generally,  the  precedent  should  be  sub- 
stantially followed. 

§285.  Mortgagees'  Deeds.  Mortgagees'  deeds,  made  in  pur- 
suance of  a  power  of  sale,  differ  in  no  important  particular  from 

72  Hosmer  v.  Campbell,  98  111.  572 ;  73  Ventres  v.  Cobb,  105  111.  33. 

Montague  v.  Dawes,  14  Allen  (Mass.), 
369. 


§  285]  OFFICIAL   CONVEYANCES.  315 

conveyances  by  trustees,  the  mortgagee  being,  for  the  purposes  of 
the  conveyance,  an  executor  of  an  express  trust.  He  is  held  to 
the  same  strict  rules  that  regulate  the  conduct  of  other  trustees, 
and  can  not  exceed  the  express  powers  under  which  he  acts.  A 
mortgagee  may  sell  the  equity  of  redemption  of  the  mortgagor 
and  such  interest  as  is  conveyed  to  him  by  the  mortgage  under 
which  he  sells,  but  he  can  not  sell  the  equity  of  redemption  by 
itself;  nor  can  he  sell  an  undivided  portion  of  his  interest  in  the 
land  included  in  the  mortgage.  A  proper  execution  of  the  power 
of  sale  requires  him  to  sell  all  he  is  entitled  to  under  it,"''*  and  for 
the  same  reason  he  has  no  right  to  sell  a  greater  interest  than  the 
mortgage  gives  him  or  authorizes  him  to  sell.  A  violation  of  these 
rules  will  render  the  sale  invalid.'''^ 

The  recitals  of  a  mortgagee's  deed  are  material  to  its  validity, 
as  tending  to  show  a  due  execution  of  the  power  and  compliance 
with  the  conditions  of  the  trust,''^^  and  should  be  shown  in  the 
abstract  in  the  same  manner  as  indicated  in  case  of  trustees' 
deeds."''  The  original  purchaser  at  a  sale  by  a  mortgagee,  under 
a  power  of  sale  contained  in  the  mortgage,  is  chargeable  with  notice 
of  defects  and  irregularities  attending  the  sale,  and  can  not  evade 
their  effect,'®  but  it  would  seem  that  as  to  remote  purchasers,  ihe 
sale  is  only  voidable  on  proof  of  actual  knowledge  of  such  defects 
acquired  before  the  consideration  has  been  paid.'^  It  has  been 
held,  however,  that  a  properly  executed  deed  reciting  strict  con- 
formity, the  purchaser  having  no  actual  knowledge  or  notice  of 
any  irregularity  and  taking  such  deed  upon  the  strength  of  the 
assurances  therein  contained,  will  protect  the  title  of  such  pur- 
chaser.^® 

Deeds  by  trustees  and  mortgages,  made  under  a  power  of  sale, 
will  be  found  in  the  history  of  many  titles.  In  such  cases  the 
procedure  indicated  above  should  be  followed  in  preparing  the 
abstract.     At  present,  however,  this  practice  is  not  permitted  in 

74Fowle  V.  Merrill,  10  Allen,  350;  that  there  had  been  a  valid  sale  uu- 

Torrey  v.  Cook,  116  Mass.  163.  der  the  power,  although  the  deed  may 

76Donohue  v.  Chase,  130  Mass.  137.  be  defectively  executed  so  as  not  to 

76  Gibbons  v.  Hoag,  95  111.  45.  pass  the  logal  title:  Oibbons  v.  Hoag, 

77  Where  a  deed  for  land  sold  under  95  111.  45. 

a  power  in  a  mortgage,  reciting  cor-  78  Hamilton  v.  Lubukee,  51  111.  415. 

rectly   all  the   facts   showing   a   right  But  see  Tlosmer  v.  Campbell,  98  111. 

to  make  the  sale,  is  recorded  in  apt  572. 

time,  the  record  thereof  will  affect  all  79  Grovcr  v.  Hale,  107  111.  638. 

persons  thereafter  claiming  under  the  SOHosmer  v.  Campbell,  98  111.  572. 
mortgagor    with    constructive    notice 


316  ABSTR.VCTS   OF    TITLE.  [§  286 

most  of  the  stat(>s  and  all  moi-tgag:es,  and  trust  deeds  in  the  nature 
of  mortprafros,  must  he  foreclosed  in  eourt. 

§  286.  Executors  and  Administrators.  The  real  estate  of  a  de- 
ceased juMson  is  freqnontly  conveyed  through  the  media  of  what 
are  known  as  "personal  representatives,"  consisting  of  executors, 
or  persons  specifieally  designated  for  that  purpose  by  the  decedent, 
and  administrators,  who  act  by  virtue  of  an  appointment  under  the 
law.*^  An  executor  may  sell  and  convey  lands  held  in  special 
trust  without  the  intervention  of  a  court,  but  not  such  lands  as 
are  sold  in  due  course  of  administration  to  pay  decedent's  debts, 
while  an  administrator  can  do  no  act  affecting  lands  without  the 
special  order  of  a  court.  In  case  of  sales  by  either  officer  no  title 
passes  until  the  execution  and  delivery  of  a  deed,*^  and  without 
such  title  as  the  deed  conveys,  the  purchaser  can  not  maintain  or 
defend  ejectment  against  or  by  the  heir.^' 

§287.  Executors'  Deeds.  A  testamentary  executor  stands  in 
the  place  of  and  represents  his  testator.  He  derives  his  power 
primarily  from  the  will,  and  in  this  respect  differs  somewhat  from 
an  administrator,  whose  sole  power  is  derived  from  the  law  and 
the  directions  of  the  court.®*  Wlien  acting  under  a  naked  testa- 
mentary appointment,  his  powers  are  co-extensive  with  those  of 
an  administrator,  and  he  is  bound  by  the  same  rules,  and  sub.iect 
to  the  same  restrictions.  But  the  executor  may  also  be  a  trustee,*^ 
and.  when  acting  as  such,  the  scope  of  his  powers  is  measured  and 
limited  by  the  will  which  appoints  him.  The  distinction  therefore, 
must  ever  be  kept  in  view  of  the  powers  and  duties  of  an  executor, 
as  such,  and  those  which  may  devolve  upon  him  as  trustee,  and  not 
as  executor.*®  Under  his  testamentary  authority,  he  may  sell 
land,  and  otherwise  execute  the  trusts  and  exercise  the  powers 
enumerated  and  conferred  in  the  will,  subject  to  the  general  regu- 
lations of  the  statute,  and  free  from  the  control  or  intervention  of 
a  court."    But  where  authority  is  not  expressly  given,  or  where, 

«1" Legal"  or  "Personal  represen-  83  Doe  v.  Hardy,  52  Ala.  291;  Gricl- 

tativc"    in    the    commonly    accepted  ley  v.  Phillips,  5  Kan.  .349. 

sense,  means  administrator  or  execu-  84  Walker  v.  Craig,  18  111.  16.    Van 

tor.      But    this    is    not    the    only    de-  Wickle  v.   Calvin,   23   La.   Ann.   205; 

finition.      It    may    mean    heirs,    next  Gilkey  v.  Hamilton,  22  Mich.  283. 

of  kin,  or  descendants:   Warnecke  v.  85  Pitts  v.   Singleton,  44  Ala.   363. 

Lembea,  71   111.  91.  86  Warfield     v.     Brand,     13     Bush 

82  A  properly  conducted  sale,  after  (Ky.),    77;    Wliite   v.   Clover,   59   111. 

confirmation  vests   the  equitable   title  462. 

in  the  purchaser.  87  Buckingham  v.  Wesson,  54  Miss. 


§  288]  OFFICIAL    CONVEYANCES.  317 

during  the  administration,  he  performs  the  ordinary  offices  of  an 
executor,  as  where  land  is  sold  to  pay  the  debts  of  decedent,  no 
express  power  being  given,  he  must  first  obtain  authority  or  license 
from  the  probate  court,  and  his  sale  must  be  reported  to  and  con- 
firmed by  such  court,  before  a  deed  can  lawfully  issue  to  the  pur- 
chaser. 

An  executor's  deed,  therefore,  will  be  governed  by  the  law 
relating  to  trustees  or  administrators,  according  as  he  may  convey 
in  the  one  or  the  other  capacity,  and  the  reader  is  referred  to  the 
remarks  on  those  classes  of  deeds  respectively.^^  In  either  case, 
the  authority  of  the  deed  must  precede  it ;  in  the  one  case  the  will, 
showing  the  power  of  sale  or  trust,  and  the  manner,  if  stated, 
in  which  the  power  must  be  exercised  or  the  trust  executed,  and  in 
the  other,  the  license,  report  of  sale  and  confirmation,  while  a 
synopsis  of  the  probate  of  the  will  must  be  shown  in  both  instances. 
As  in  all  other  cases  of  fiduciary  conveyances,  the  deed  itself  must 
show  substantial  compliance  with  the  requirements  of  the  will  and 
of  the  law,  and  be  in  other  respects  regular.  The  precedent  of  a 
trustee's  deed  heretofore  shown  will  suggest  the  method  to  be  fol- 
lowed where  an  executor  executes  a  deed  in  pursuance  of  a  testa- 
mentary trust. 

An  executor's  deed,  under  power,  should  always  expressly  state 
that  it  is  made  in  execution  of  such  power,  and  where  the  executor 
also  possesses  individual  interests  in  the  land  conveyed  and  his 
deed  does  not  purport  to  be  in  pursuance  of  his  delegated  author- 
ity or  in  execution  of  the  power  with  which  he  is  invested,  it  will 
be  insufficient  to  pass  the  interest  of  the  testator.^^ 

§288.  Administrators'  Deeds.  An  administrator  is  regarded 
as  an  executive  officer  of  the  court,  while  he  also  occupies  the 
relation  of  trustee  to  the  estate,  its  creditors  and  distributees.®"  Al- 
though he  may  not  possess  as  much  power  as  an  executor,  the  latter 
deriving  his  authority  from  the  testator  and  the  law,  and  the 
administrator  from  the  law  only,®^  he  yet  possesses  the  necessary 

526;  Whitman  v.  Fisher,  74  111.  147;  89  Cohea  v.  Hemingway,  71  Miss. 
Cronise  v.  Hardt,  47  Md,  433;  Jelks  22;  Davenport  v.  Young,  16  111.  548. 
V.  Barrett,  52  Miss.  315;  Hughes  v.  90Wingate  v.  Pool,  25  111.  118; 
Washington,  72  111.  84.  But  the  State  v.  Meagher,  44  Mo.  356.  These 
power  must  be  explicit;  general  remarks  wiU  also  apply  to  some  phases 
•words  do  not  confer  power  to  sell  of  the  office  of  executor.  See  fore- 
lands: Skinner  v.  Wood,  76  N.  C.  109.  going  section. 

88  See     "Judicial     and     Execution  91  Gilkey    v.    Hamilton,    22    Mich. 

Sales,"  and  the  chapter  on  Testamen-  283. 
tary   Conveyances. 


318 


ABSTRACTS   OF   TITLE. 


§288 


power  to  sell  i)roi)t'ity,  negotiate  securities,  and  to  settle  and  pay 
debts.^2  l)iit  always  under  the  order  and  direction  of  the  court. 
He  taki's  neither  an  estate,  title,  nor  interest  in  the  lands  of  his 
intestate,®^  but  a  mere  naked  power  to  sell  for  specific  purposes.®* 
He  takes  the  land  as  he  finds  it,^^  j„,(i  having  no  interest  therein, 
ran  maintain  no  action  to  perfect  the  title  or  relieve  it  of  any  bur- 
den.®*' and  must  sell  it  as  he  finds  it.®'' 

An  administrator's  deed  derives  its  primary  validity  from  the 
order  of  the  court  directing  the  sale  of  the  land  in  question,  and 
this  order,  together  with  a  synopsis  of  the  preliminary  proceedings 
which  induced  it,  and  the  report  of  sale  and  confirmation,  should 
precede  the  deed  in  every  instance.®*  The  power  to  sell  is  a  per- 
sonal trust,  which  cannot  be  delegated,®®  and  the  sale  being  a 
fiduciary  act  based  upon  statute,  must  show  affirmatively  a  strict 
compliance  Avith  the  law.^  In  addition  to  the  report  of  sale,  a  sub- 
stantial account  of  same  is  also  incorporated  into  the  deed,  and  this, 
together  with  all  other  material  recitals  tending  to  show  a  full 
compliance  with  the  decretal  order  and  statutory  requirements 
should  be  stated  with  reasonable  detail  in  the  abstract.  A  form  is 
here  appended  for  further  illustration: 


Nathaniel    M.    Jones,    as    ad-' 
ministrator    of    the    estate 
of  John  R.   Thompson,  de- 
ceased, late  of  Cook  Coun- 
ty, Ills., 

to 

James  McHenry 

Doc.  125,416. 


Administrator's  Deed. 

Dated  Jidy  15, 1882. 

Recorded  Aug.  4,  1882. 

Book  119,  Page  410. 

Sets  forth,  that  the  Probate 
Court,  of  Cook  County,  Illinois, 
at  a  regidar  term  thereof,  on  May 
10,  1882,  in  a  certain  cause, 
hrovght  under  the  statute,  where- 
in said  Xathaniel  M.  Jones,  as  Administrator  of  the  estate  of  said 


92  Walker  v.  Craig,  18  111.  116. 
Real  estate  cannot  be  sold  by  an  ad- 
ministrator unless  the  personal  estate 
is  insufficient  to  pay  the  liabilities; 
and,  ordinarily,  only  so  much  should 
le  sold  as  is  necessary  for  that  pur- 
pose: Newcomer  v.  "Wallace,  30  Ind. 
216;  Foley  v.  McDonald,  46  Miss.  238. 

93  Ryan  v.  Duncan,  88  111.  144; 
Stuart   V.   Allen,   16  Cal.  473. 

94  Smith  v.  McConnel,  17  111.  135; 
Floyd  V.  Herring,  64  N.  C.  409. 

95Gridley  v.  Watson,  53  HL  186. 


96  LeMoyne  v.  Quimby,  70  111.  399 ; 
Ryan  v.  Duncan,  88  TU.  146. 

97  Martin   v.   Beasley,   49   Ind.   280. 

98  See    Probate    Proceedings,    infra. 

99  Chambers  v.  Jones,  72  111.  275; 
Gridley  v.  Philips,  5  Kan.  349. 

IFell  V.  Young,  63  111.  106;  Lock- 
wood  V.  Sturdcvant,  6  Conn.  386; 
Corwin  v.  Merritt,  3  Barb.  341.  An 
administrator's  deed  for  land  is  not 
admissible  as  evidence  without  proof 
that  the  maker  was  administrator: 
Ury  V.  Houston,  36  Tex.  260. 


§  288]  OFFICIAL    CONVEYANCES.  319 

John  B.  Thompson,  deceased,  was  plaintiff,  and  George  B.  Thomp- 
son and  Mary  E.  Thompson,  were  defendants,  did,  hy  order  duly 
entered,  empower  and  direct  said  Nathaniel  M.  Jones,  as  such 
Administrator,  to  sell  at  piiblic  vendue  the  real  estate  of  said 
John  B.  Thompson,  deceased,  hereinafter  described,  for  the  purpose 
of  paying  the  just  claims  against  his  estate. 

That  in  pursuance  of  said  decretal  order,  said  first  party,  as 
such  administrator,  having  given  due  public  notice  of  the  intended 
sale  by  causing  a  notice  of  the  terms,  time  and  place  of  such  sale, 
together  with  a  description  of  the  real  estate  to  be  sold,  to  be  pre- 
viously posted  for  four  weeks,  at  four  of  the  most  public  places  in 
the  county  where  such  real  estate  was  sold,  and  also,  to  be  puh- 
lished  for  four  successive  weeks  prior  to  said  sale,  in  the  Chicago 
Legal  News,  a  newspaper  puhlished  in  said  Cook  County,  the 
county  where  such  real  estate  was  sold,  agreeably  to  the  order  and 
directions  of  said  Probate  Court,  and  in  accordance  with  the  stat- 
ute in  such  cases  made  and  provided,  did,  on  Jiine  15,  1882,  pur- 
suant to  the  order  and  notice  aforesaid,  sell  at  public  vendue  the 
real  estate  of  said  John  B.  Thompson,  deceased,  in  said  order  de- 
scribed, to  James  McHenry,  he  being  the  highest  bidder  therefor. 

That  first  party  made  and  filed  in  the  office  of  the  clerk  of  said 
Probate  Court  a  complete  report  of  his  proceedings  and  sale  un- 
der said  order,  and  said  Probate  Court  having  carefully  examined 
the  same  on  July  10,  1882,  finding  the  same  correct,  did  approve 
and  confirm  the  same,  and  ordered  said  Nathaniel  M.  Jones,  as 
such  administrator,  to  execute,  acknowledge  and  deliver  a  deed  of 
said  real  estate  to  second  party,  on  his  complying  with  the  terms 
of  said  sale,^  and  that  second  party  has  in  all  things  complied 
with  the  terms  of  said  sale  on  his  part  to  be  performed. 

Now,  therefore,  first  party,  in  consideration  of  the  premises  and 
$100.00,  grants,  bargains  and  sells  land  in  Cook  County,  III.,  to 
wit:  [Here  follows  the  description  of  the  land  according  to  the 
deed.] 

Together  with  all  and  singular  the  hereditaments  and  appur- 
tenances thereunder  belonging,  and  all  the  estate,  right,  title,  in- 
terest, claim,  and  demand  whatsoever,  at  law  or  in  equity,  which 
said  John  B.  Thompson,  deceased,  had.  at  the  time  of  his  death,  in 
and  to  said  premises. 

To  have  and  to  hold  the  same  unto  second  party,  his  heirs  and 
assigns  forever,  as  fully  and  effectually,  to  all  intents  and  purposes 

2  One  who  produces  an  administra-      thorized.     LaPlante   v.   Lee,   83   Ind. 
tor's    deed   as   evidence    of    his   title,      155. 
must  show  that  its  execution  was  au- 


320  ABSTRACTS   OF   TITLE.  [§  288 

in  law,  us  first  party  might,  could  or  ought,  have  power  to  sell 
and  convey  the  same,  by  virtue  of  said  decretal  order. 
Certificate  of  acknowledgment,  dated  July  15,  1882. 

The  doctiiuo  of  caveat  emptor  applies  to  all  sales  by  the  admin- 
istrator,^ and  the  purchaser,  who  is  presumed  to  have  made  all 
necessary  inquiries,  takes  the  title  at  his  peril,*  and  subject  to  all 
liens,  except  those  for  the  payment  of  which  the  land  is  sold.^  The 
purchaser  has  no  right  to  the  land  until  the  sale  has  been  con- 
lirmed,®  but  where  the  sale  has  been  made  under  a  proper  order 
of  the  court,  and  reported  to  and  confirmed  by  such  court,  it  con- 
veys title  even  though  the  proceedings  be  irregular."'' 

§  289.  Administrator  with  Will  Annexed.  An  administrator 
with  the  Will  annexed  occupies  much  the  same  position  as  an 
executor  and  may  exercise  many  of  the  executor's  powers.*  He 
acts  under  the  will  and,  as  a  rule,  any  power  given  to  the  executor, 
which  is  not  in  the  nature  of  a  personal  trust,  that  is,  where  the 
power  given  belongs  to  the  office  of  executor  and  not  to  the  per- 
son, may  be  exercised  by  an  administrator  with  the  will  annexed.* 
Where  the  will  creates  a  personal  trust  which  the  executor  alone 
could  execute  without  the  intervention  of  a  court,  the  trust  will 
not  pass  to  the  administrator  with  the  will  annexed,  and  sales 
thereunder  of  real  property  of  the  testator  by  the  administrator 
will  be  without  authority  and  void.^**  Where  the  will  gives  to  an 
executor  therein  named  powers  and  duties  to  be  performed  which 
do  not  ordinarily  come  within  the  scope  of  an  executor's  func- 
tions,^^ or  where  land  is  devised  to  him  to  be  sold,^^  an  adminis- 

3  McConnell  v.  Smith,  39  111.  279.  disqualiiied    or    reuounces    the    office. 

4  Bishop  V.  O  'Connor,  69  111.  431.  4.  Where  the  executor  dies  before  the 

5  Henderson  v.  Whitinger,  56  Ind.  completion  of  administration;  in  this 
131.  latter  case   the   administrator  is  also 

6  Mason  v.  Osgood,  64  N.  C.  467 ;  administrator  de  boims  non. 
Rawlings  v.  Bailey,  15  111.  178;   Ury  9  Anderson    v.    McGowan,    45    Ala. 
V.   Houston,   36   Tex.   260.  462;   Prescott  v.  Morse,  64  Me.  422; 

7  Thorn    v.    Ingram,    25    Ark.    52;  Belcher  v.  Branch,  11  R.  I.  226. 
Myer  v.  McDougal,  47  111.  278.    Com-  10  Anderson    v.    McGowan,    45    Ahi. 
pare  Chase  v.  Ross,  36  Wis.  267.  280;  Dunning  v.  Ocean  Nat.  Bank,  61 

8  An  administrator  cwm  testamento  N.  Y.  497;  Ross  v.  Barclay,  18  Pa. 
annexo  is  appointed  on  the  following  St.  179. 

occasions :      1.  Where  no   executor  is  H  Ingle  v.  Jones,  9  Wall.  486. 
appointed  by  the  will.     2.  Where  an  12  Nicoll  v.  Scott,  99  111.  529;  Dun- 
executor  is  appointed  but  dies  before  ning  v.   Ocean  Nat.  Bank,  61  N.  Y. 
the  testator.    3.  Where  from  any  cause  497 ;  Gilchrist  v.  Rea,  9  Paige,  66. 
the     executor     becomes    incompetent. 


§  290]  OFFICIAL   CONVEYANCES.  321 

trator  with  the  will  annexed  has  no  power,  without  the  aid  of  a 
court,  to  sell  the  lands  so  devised  or  directed  to  be  sold,  or  to  ex- 
ecute the  special  powers  given  to  the  executor.^^ 

§290.  Guardians'  Deeds.  Guardians  ^^  and  conservators" 
frequently  make  conveyances  of  the  real  estate  of  their  wards, 
either  to  pay  debts,  or  for  the  support  and  education  of  the  ward, 
or  for  the  purpose  of  investing  the  proceeds;  and  such  convey- 
ances, if  attended  by  all  the  statutory  requisites,  are  effectual  to 
convey  all  the  title  which  the  ward  may  have  possessed  at  the  time 
of  the  sale.^^  Sales  of  this  kind  are  made  under  the  direction  of 
the  probate  court  upon  petition  by  the  guardian  stating  the  nec- 
essary jurisdictional  facts,^'''  and  after  notice  of  such  application, 
in  the  manner  provided  by  law.^^  g^ch  sales  must  be  further  re- 
ported to  and  confirmed  by  the  court  granting  the  license,^^  but  the 
title  of  the  ward  will  not  be  divested  until  a  deed  has  been  ordered 
and  actually  executed.*^" 

The  deed  should  therefore  be  preceded  in  the  abstract  by  brief 
recitals  of  the  antecedent  steps  or  references  to  all  jurisdictional 
facts.  These  would  consist  of  an  abstract  of  the  letter  of  guard- 
ianship, but  not  necessarily  of  the  prelimniary  matters  of  induce- 
ment, as  a  letter  of  guardianship  is  in  the  nature  of  a  certificate 
or  commission,  and,  in  the  absence  of  any  statutory  provision  re- 
quiring it,  it  is  not  essential  to  its  validity  as  evidence  of  the 
appointment  that  it  should  recite  the  mode  and  particulars  of 

13  Such  trusts  frequently  devolve  IV  The  petition  is  of  paramount  ne- 
upon  a  trustee  whom  the  court  may  eessity,  and,  it  seems  that  without 
appoint  for  that  purpose :  FarweU  v,  such  a  petition  the  court  gets  no  juris- 
Jacobs,  4  Mass.  634.  diction  to  grant  a  license  to  sell;  Ey- 

14  The  common  law  recognized  four  der  v.  Flanders,  30  Mich.  336. 
kinds  of  guardians,  to  wit:  in  chiv-  18  The  notice  is  jurisdictional,  and 
airy,  by  nature,  in  socage,  and  by  nur-  a  sale  without  giving  the  statutory 
ture.  The  distinctions  do  not,  and  notice  has  been  held  absolutely  void: 
never  have  existed  in  the  United  Eankin  v.  Miller,  43  Iowa,  11;  Ken- 
States.  The  statutory  guardianship  nedy  v.  Gaines,  51  Miss.  625.  If, 
is  the  only  kind  which  figures  in  land  however,  the  notice  is  defective  mere- 
titles,  ly,  the  jurisdiction  is  saved;  Lyon  v. 

16  The    estate,    and    frequently    the  Vannatta,  35  Iowa,  521. 
person  as  well,  of  persons  non  com-  19  Confirmation   is   essential  to   the 
pos  mentis,  is   often  confided  to  the  validity   of  the  sale.     People  v.   Cir- 
care  of  a  statutory  guardian  generally  cuit   Judge,   19   Mich.   296;    White   v. 
called  a  conservator  or  committee.  Clawson,  79  Ind.  188;  Chapin  v.  Cur- 
ie Wisener   v.   Lindsay,   33  La.   An.  tenius,   15    111.   427. 
1211;    Mulford   v.   Beveridge,  78   111.  30  Doe  v.  Jackson,  51  Ala.  514. 
445;  Fitzgibbon  v.  Lake,  29  111.  165. 
Warvelle  Abstracts — 21 


322  ABSTRACTS   OP   TITLE.  [§  290 

emanation,  -while  all  reasonable  presumptions  must  be  indulged  in 
favor  of  its  having  been  regularly  issued  and  after  lawful  proceed- 
ings ;  *^  a  brief  synopsis  of  the  petition  and  notice,  or  at  least 
references  to  those  instruments ;  a  synopsis  of  the  decree  or  license 
of  sale;  and  reference  to  the  guardian's  report  of  sale,  and  order 
of  confinnation. 

§291.  Trustees  Can  Not  Become  Purchasers.  It  is  a  settled 
principle  of  etjuity,  that  no  person  who  is  placed  in  a  situation  of 
trust  or  confidence  with  respect  to  the  subject  of  the  sale  can  be 
a  purchaser  of  the  property  on  his  own  account.  The  principle 
is  not  conhned  to  a  particular  class  of  persons,  such  as  guardians, 
trustees,  etc.,  but  is  a  rule  of  universal  application  to  all  persons 
coming  within  its  principle,  which  is,  that  no  party  can  be  admit- 
ted to  purchase  an  interest,  where  he  has  a  duty  to  perform  that 
is  inconsistent  with  the  character  of  purchaser.  The  reason  of  the 
rule  is,  not  because  they  might  not,  in  many  instances,  make  fair 
and  honest  disposition  of  it  to  themselves,  but  because  the  prob- 
ability is  so  great  that  they  would  frequently  do  otherwise,  with- 
out danger  of  detection,  that  the  law  considers  it  better  policy  to 
prohibit  such  purchases  entirely  than  to  assume  them  to  be  valid 
except  where  they  can  be  proved  to  be  fraudulent. 

"The  rule  forbidding  conflict  between  interest  and  duty  is  no 
respecter  of  persons.  It  imputes  constructive  fraud,  because  the 
temptation  to  actual  fraud  and  the  facility  of  concealing  it  are  so 
great.  And  it  imputes  it  to  all  alike,  who  come  within  its  scope, 
how^ever  much  or  however  little  open  to  suspicion  of  actual 
fraud.  "22 

The  principles  Avhich  prohibit  the  trustee  from  becoming  a  pur- 
chaser extends  to  all  sales  of  the  trust  property  whether  made  by 
the  trustee  himself,  under  his  powers  as  trustee,  or  under  an  ad- 
verse proceeding.  As  a  general  trustee  of  the  subject-matter,  it  is 
his  duty  to  make  it  bring  as  much  as  possible  at  any  sale  that  may 
take  place,  and  therefore  he  cannot  put  himself  in  a  situation  where 

81  Burrows  v.  Bailey,  34  Mich.  64.  444;    Blauvelt   v.   Ackermann,  20    N. 

The    proceedings    by    a    guardian    to  J.   Eq.  141;   R.  R.  Co.  v.  E.  R.  Co., 

sell   his   ward's   lands   are    statutory,  19     Gratt.     (Va.)     592;     Boerum    v. 

and    a    material    deviation    from    the  Schenck,   41   N.   Y.    182;    Roberts  v. 

requirements    of    the    statute    is,    in  Roberts,   65   N.    C.   27;    McGowan   v. 

general,    jurisdictional.  McGowan,  48  Miss.  553;   Goodwin  v. 

28  Ryan,   C.    J.,   in   Cook   v.   Berlin  Goodwin,    48    Ind.    584;    Sheldon    v. 

Mill  Co.,   43  Wis.  433;    Story's  Eq.,  Rice,  30  Mich.  296. 
§310;     Grumley    v.    Webb,    44    Mo. 


§  292]  OFFICIAL    CONVEYANCES.  323 

it  becomes  his  interest  that  the  property  should  bring  the  least 


sum 


23 


§292.  Continued — Qualifications  of  the  Rule.  The  foregoing, 
though  stating  the  generally  received  doctrine,  is  yet  subject  to 
qualification.  While  the  rules  as  stated  still  apply  in  all  their 
pristine  vigor  to  a  large  class  of  fiduciary  relations,  to  certain 
others  their  effect  has  been  greatly  modified.  Thus,  a  purchase  of 
land  by  an  executor,  at  his  own  sale,  directly  or  indirectly,  is  not 
ordinarily  void,  but  only  voidable  at  the  option  of  the  heirs  or 
beneficiaries  seasonably  expressed.^*  A  clear  and  unequivocal  af- 
firmance of  the  sale,  which  must  be  bona  fide,  may  conclude  the 
beneficiary,  if  under  no  disability  and  in  full  knowledge  of  the 
facts,  and  the  acceptance  of  proceeds  by  the  beneficiary  would,  in 
general,  amount  to  an  affirmance.^^ 

All  such  sales,  however,  are  viewed  by  the  courts  with  a  jealous 
eye  and  set  aside  for  slight  cause,  and  titles  derived  through  or 
under  them  are  questionable  at  best.  If  re-enforced  by  a  quit- 
claim or  confirmation  by  the  heirs  or  beneficiaries,  they  become 
less  obnoxious,^^  yet  even  then  they  are  far  from  perfect,  as  the 
unsatisfied  rights  of  creditors  may  raise  equities  sufficient  to  vacate 
and  annul  the  deed. 

23  Martin    v.     Wyneoop,     12     Ind.  182;  Brantly  v.  Cheeley,  42  Ga.  209; 

266.  Scott  V.  Mann,  33  Tex.  721. 

24Frazer     v.     Lee,     42     Ala.     25;  26  Where   one    receiving   title   from 

Smith    V.    Granberry,    39    Ga.    381;  a    trustee    is    chargeable   with    notice 

Williams     v.     Ehodes,     81     111.     571;  of  the  disability  of  his  grantor,  it  is 

Froneberger     v.     Lewis,     70     N.     C.  essential,    in    most    cases,    that    some 

456;    Dodge    v.    Stevens,    94    N.    Y.  affirmation    of   the    sale    be   obtained 

209.  from  the  beneficiary. 

25Boerum    v.    Schenck,    41    N.    Y. 


CHAPTER  XVIII. 


ASSIGNMENTS,   INSOLVENCY    AND   BANKRUPTCY. 


§  29;5. 

Assignmcuts  generally. 

§302. 

§294. 

Voluntary  assignments. 

§  303. 

§295. 

Validity  of  assignments. 

§304. 

§296. 

Formal  requisites. 

§297. 

Title  of  assignee. 

§305. 

§298. 

Construction  and  effect. 

§  306. 

§299. 

Conflict  of  laws — Foreign  as- 

§307. 

signments. 

§308. 

§300. 

Insolvency. 

§309. 

§  301. 

Bankruptcy. 

Jurisdiction   and    practice. 
Classification  —  Procedure. 
Nature    and    effect    of    bank- 
ruptcy. 
Procedure. 

Bankruptcy  proceedings. 
The  assignment. 
The  assignee's  deed. 
§  309.  Discharge  in   bankruptcy. 


§293.  Assignments  Generally.  An  assignment,  as  defined  by 
Bnrrill,^  "is  a  transfer  or  setting  over  of  property,  or  of  some 
right  or  interest  therein,  from  one  person  to  another;  the  term 
denoting  not  only  the  act  of  transfer,  but  also  the  instrument  by 
which  it  is  effected."  When  applied  to  real  estate  it  indicates  a 
transfer  of  the  entire  interest  of  the  assignor  in  the  transferred 
property,  but  in  popular  use  is  restricted  to  the  conveyance  of  an 
estate  for  life  or  years.  The  terms  is  also  used  to  distinguish  a 
peculiar  class  of  conveyances  resorted  to  by  persons  who  find 
themselves  in  embarrassed  circumstances,  or  who  are  unable  to 
satisfy  the  full  demands  of  their  creditors.  In  this  sense  assign- 
ments are  classed  as  voluntary,  or  such  as  are  made  by  the  free 
act  and  deed  of  the  assignor ;  and  involuntary  or  statutory,  or  such 
as  are  made  under  compulsion  of  law  and  in  the  furtherance  of 
statutes  of  bankruptcy  or  insolvency.  In  all  cases  they  imply  a 
tnist  and  the  intervention  of  a  trustee,^  and  conveyances  made 
directly  to  the  beneficiaries,  though  for  the  same  purpose,  are  not 
technically  assignments,^  and  come  under  the  provisions  regulating 
ordinarv  deeds  of  transfer  and  sale. 


§  294.  Voluntary  Assignments.    The  power  to  make  an  assign- 
ment for  the  benefit  of  creditors  is  not  derived  from  any  statutory 


1  Burrill  on  Assignments. 

2Cowles  V.  Rickett,  1  Iowa,  382; 
Dickson  v.  Rawson,  5  Ohio  St.  218; 
Peck  V.  Merrill,  26  Vt.  686. 


3  Beach  v.  Beston,  47  111.  521; 
Keen  v.  Preston,  24  Ind.  395;  John- 
son V.  McGraw,  11  Iowa,  151;  Grif- 
fin V.  Roger,  38  Pa.  382. 


324 


§  294]  ASSIGNMENTS,   INSOLVENCY   AND   BANKEUPTCY.  325 

enactment.  Every  debtor,  whether  solvent  or  insolvent,  possesses, 
independent  of  statutory  grant,  the  right  to  make  any  disposition 
of  his  property  which  does  not  interfere  with  the  rights  of  others ; 
in  other  words,  to  make  any  honest  disposition  of  his  property 
that  he  pleases.  The  right  of  assignment  is  clearly  within  the 
absolute  dominion  which  the  law  empowers  every  man  to  ex- 
ercise over  his  own.  Statutory  provisions  concerning  assignments 
are  to  be  found  in  all  the  States,  yet  such  statutes  do  not  con- 
fer the  right,  but  merely  regulate  its  exercise,  subjecting  it,  as 
in  other  transfers  of  property,  to  certain  restrictions  and  limita- 
tions which  experience  has  demonstrated  to  be  wise  and  just;  but 
it  is  still  the  assignor's  voluntary  act,  and  not  the  act  of  the  law. 

So,  also,  the  power  of  the  assignee  is  fixed  by  the  instrument  of 
assignment,  which  is  at  once  the  guide  and  measure  of  his  duty. 
Beyond  that,  or  outside  of  its  terms,  he  is  powerless  and  without 
authority.  He  distributes  the  proceeds  and  disposes  of  the  estate 
placed  in  his  care  according  to  the  dictation  and  under  the  sole 
guidance  of  the  assignment,  and  the  statutory  provisions  merely 
regulate  and  guard  his  exercise  of  an  authority  derived  from  the 
will  of  the  assignor.  In  all  things  the  assignee  is  the  representa- 
tive of  the  assignor,  and  must  be  governed  by  the  express  terms 
of  his  trust.* 

Assignments  of  the  character  just  described  will  be  found  in 
the  devolution  of  many  titles.  Prior  to  the  national  bankrupt 
act  of  1898  this  method  of  transfer  was  much  employed  by  both 
solvent  and  insolvent  debtors.  To  some  extent  it  is  still  used  but 
under  the  terms  of  the  bankrupt  law  an  assignment  for  creditors 
constitutes  an  act  of  bankruptcy,  even  though  the  debtor  is  not  in 
fact  insolvent,  and  may  be  avoided  by  bankrupt  proceedings  where 
it  is  attacked  in  time.^ 

But  the  Federal  statute  does  not  prohibit  or  invalidate  a  vol- 
untarj'  deed  of  assignment  and  unless  action  is  had  thereon  in  the 
bankrupt  court  within  four  months  from  the  time  when  filed  for 
record  an  assignment  will  not  be  affected  by  the  bankrupt  statute. 
Such  an  assignment,  therefore,  is  not  void,  but  voidable  only,  and, 
unless  avoided  by  an  adjudication  in  bankruptcy,  will  be  valid  and 
binding  on  all  of  the  creditors  who  assent  thereto,^  and  may  be 
enforced,  and  the  parties  thereto  granted  all  appropriate  relief, 
by  the  state  courts.''    The  terms  of  the  bankrupt  law  further  ex- 

4  In    re    Lewis,    81    N.    Y.    421;  590;    Davis   v.    Bohle,   92    Fed.    Eep. 

Pillsbury    v.    Kingon,    31    N.    J.    Eq.  325. 

619;    Bank   v.   Willis,    7   W.   Va.   31.  6  Re   Romanow,  92   Fed.   Rep.   510, 

6  See,  West  Co.  v.  Lea,  174  U.  S.  1  Louisville  Dry  Goods  Co.  v.  Lan- 


326  ABSTRACTS   OF   TITLE.  [§  294 

empt  wage  earners  and  persons  engaged  chiefly  in  farming,  or 
tillage  of  the  soil,  from  involuntary  bankruptcy.®  Such  persons, 
therefore,  may  make  valid  assignments  for  the  benefit  of  creditors, 
as  they  are  not  subject  to  the  provisions  of  the  bankrupt  act.®  At 
present,  howevei-,  this  form  of  conveyance  is  but  seldom  em- 
jiloyed. 

§  295.  Validity  of  Assignments.  In  all  cases  where  conveyances 
are  made  for  the  ostensible  purpose  of  securing  an  equal  distribu- 
tion among  creditors,  of  the  property  of  the  debtor,  the  validity  of 
the  conveyance  depends  upon  the  intention  of  the  debtor.  If  the 
intention  be  to  hinder  and  delay  creditors  in  the  enforcement  of 
their  demands  agaist  such  debtor,  rather  than  to  secure  an  equita- 
ble distribution  of  the  property  among  creditors,  and  for  their 
benefit,  the  conveyance  is  fraudulent  and  void.  It  is  not  the  effect 
of  such  conveyances  that  determines  their  validity,  for  every  such 
conveyance  in  effect  hinders  and  delays  creditors.  It  is  the  in- 
tention that  controls,  and  that  intention  cannot  be  better  deter- 
mined than  from  the  language  of  the  deed  of  conveyance,  although 
it  may  be  established  by  extraneous  evidence.^® 

A  full  narration  of  the  recitals  and  conditions  of  the  trust  seems 
desirable  in  all  cases  of  recent  conveyance,  as,  where  it  appears 
from  the  face  of  the  deed,  that  the  motive  for  making  it  was  to 
prevent  a  sacrifice  of  the  property;  or  if  there  be  reserved  to  the 
assignor  any  benefit  or  advantage  out  of  the  property  conveyed, 
the  intention  as  well  as  legal  effect  would  be  to  hinder  and  delay 
creditors  and  the  conveyance  would  be  void.^^  The  consideration 
expressed  is  a  matter  of  minor  importance,  the  true  consideration 
being  the  agreement  of  the  assignee  to  perform  the  trusts  imposed 
upon  him  by  the  assignment;  and  that,  in  contemplation  of  law, 
constitutes  a  full  and  complete  consideration.^^ 

§  296.  Formal  Requisites.  Though  voluntary  assignments  are 
founded  on  common  right,  yet,  to  prevent  fraud  by  the  setting  up 

man,   1.35   Ky.   163,   121    S.   W.    1042,  11  Gardner   v.   Com.   Nat.   Bank,   Ho 

28  L.  E.  A.   (N.  S.)    363.  111.  298;    Verpon  v.  Morton,  8  Dana 

8 See,  U.   S.    Comp.   Stat.   1901,   p.  (Ky.),  263;  Phelps  v.  Curtis,  80  111. 

3423.  113;    Kayser    v.    Hcavenrich,   5   Kan. 

9  Olive  V.  Armour  &  Co.  167  Fed.  324;  Lockhart  v.  Wyatt,  10  Ala.  231; 
Rep.  517,  93  C.  C.  A.  153,  21  L.  R.  A.  Reed  v.  Pclletier,  28  Mo.  173. 

(N.   S.)    109.  12  Thomas    v.    Clark,    65    Me.    296; 

10  German  Ins.  Bank  v.  Nunes,  14      Gates  v.  Labeaume,  19  Mo.  17. 
Reporter,    206;    Mackie   v.    Cairns,    5 

Cow.     (N.    Y.)     547;     Henderson    y. 
Downing,  24  Miss.  106. 


§  296]  ASSIGNMENTS,    INSOLVENCY    AND   BANKRUPTCY.  327 

of  fictitious  transfers  claimed  to  have  been  made  for  the  benefit  of 
creditors,  they  must  be  attended  with  the  prescribed  legal  formal- 
ities of  the  State  where  made,  or  where  the  property  to  be  affected 
is  situated ;  and  unless  executed  in  conformity  with  such  laws,  are 
inoperative  and  void.^^  By  the  instrument  the  debtor's  property 
must  be  unconditionally  and  without  restriction  transferred  to  the 
assignee,  with  a  general  authority  to  him  to  receive,  hold,  and  dis- 
pose of  it  for  the  equal  benefit  of  all  the  creditors,  or  in  the  order 
of  preference,  if  any,  provided  for.^* 

The  assignment  should  be  executed  with  the  same  solemnities 
that  characterize  ordinary  deeds  for  the  conveyance  of  land,  and 
be  duly  acknowledged  before  an  authorized  officer. ^^  Defects  of 
this  nature  should  be  noted  by  the  examiner  with  the  same  scrupu- 
lous care  as  in  other  conveyances  between  individuals. 

No  particular  form  of  instrument  is  needed  to  constitute  an  as- 
signment, and  any  valid  transfer,  intelligibly  indicating  the  trusts, 
will  sufBce.i^  It  is  usual  to  set  out  the  real  estate  conveyed,  either 
in  the  body  of  the  deed  or  a  schedule  thereto  annexed,  yet  such  is 
its  force  as  a  conveyance,  that,  when  made  only  in  general  terms, 
it  will  transfer  all  the  property  which  the  assignor  then  owns, 
either  in  possession  or  expectancy,  and  the  omission  to  specifically 
describe  property  in  the  inventory  would  not  prevent  the  title 
thereto  from  passing  to  the  assignee.^'  If  the  instrument  mentions 
specific  property,  without  a  clause  of  general  conveyance,  or  even 
makes  special  exceptions,  it  will  not,  for  that  reason,  be  void,  as  the 
title  to  such  withheld  property  may  still  be  pursued  by  creditors,^^ 
and  so  long  as  there  is  no  reservation  of  some  part  of,  or  some 
right  or  interest  in,  the  property  actually  conveyed,  the  assign- 
ment will  be  valid. 

The  statutory  requirements  relate  mainly  to  the  acceptance  of 
the  trust  by  the  assignee,  filing  of  bond,  notice  to  creditors,  etc., 
and  in  these  respects  a  literal  compliance  is  usually  necessary. 
The  abstract  should  show  a  full  sjTiopsis  of  the  proceedings;  the 
operative  parts  of  the  instrument  of  transfer,  including  the  trusts ; 

18  Johnson  v.  Brewer,  134  Ga.  828,  17  Eoseboom    v.    Mosher,    2    Denio 

68   S.   W.   589,   31   L.   R.  A.    (N.   S.)  (N.   Y.),  61. 

332,  18  Knight     v.     Waterman,     36    Pa. 

14McIntire  v.   Benson,  20   111.  500.  St.      258;     Ingraham     v.    Origg,     21 

In   some    States    preferences    are    not  Miss.     22;     Bates     v.     Ableman,     13 

permitted.      Consult    local    statutes.  Wis.    664;    Carpenter    v.    Underwood, 

ISBritton    v.    Lorentz,    45    N.    Y.  19  N.  Y.  520. 
51. 

16  Norton     v.     Kearney,     10     Wis. 
443. 


328  ABSTRACTS  OP   TITLE.  [^  297 

aud  bucli  portions  oi'  the  iuveutory  or  acliedule  an  cover  the  real 
estate  in  questiou. 

^  297.  Title  of  Assignee,  it  is  a  usual  requirement  on  the  part 
oi  the  assignee,  that  beiore  taking  possession  oi  the  assigned  estate, 
he  shall,  within  a  stipulated  time  aiter  the  filing  oi  the  inventory, 
execute  and  hie,  in  the  proper  oihce,  a  bond  conditioned  ior  the 
iaithiul  periormance  oi  his  duties;  and  it  has  been  held  that  the 
absolute  title  to  the  property  assigned  does  not  pass  until  this  bond 
is  hled.^^  in  the  interval  between  the  tiluig  oi  the  assignment  and 
the  liliiig  oi  the  bond,  the  inchoate  or  conditional  title  rests  under 
the  protection  oi  the  court,  which  has  jurisdiction  over  the  prop- 
erty but  not  over  the  assignee;  and  a  iailure  to  hie  the  bond,  within 
the  prescribed  time,  is,  it  is  said,  equivalent  to  a  declination  oi 
trust  which  terminates  all  right  in  the  property  which  the  assignee 
may  have  acquired  by  the  tiling  oi  the  assignment.^"  Where,  how- 
ever, there  has  been  a  iormal  acceptance  oi  the  trust  the  transier 
is  complete  and  irrevocable,  and  the  title  to  the  property  vests  in 
the  assiguee  ior  the  beneht  oi  the  creditors.^^ 

An  assignee  is  not  regarded  as  a  purchaser  ior  value,  and  has 
none  oi  the  equities  oi  such  purchaser,  lie  stands  entirely  on  his 
naked  legal  title  and  this  he  can  acquire  only  by  an  observance 
oi  the  methods  prescribed  by  law.  The  liling  oi  the  bond  in  such 
ease,  unless  expressly  made  so  by  statute,  is  not  a  condition  prece- 
dent to  the  vesting  oi  the  estate,  nor  will  the  iailure  to  give  the 
statutory  security  within  the  time  limited  invalidate  the  transier  or 
restore  the  title  oi  the  assigned  property  to  the  assignor,  in  the 
event  oi  the  iailure  to  hie  a  bond,  as  required  by  law,  the  assignee, 
though  invested  with  title,  has  no  power  or  authority  to  dispose  oi 
the  property  ior  the  purposes  oi  the  trust,  which  would  then  be  a 
di-y  trust  merely  to  take  possession  and  hold  until  he  should  be- 
come qualihed  and  empowered  to  dispose  oi  it;  but  having  ac- 
cepted, he  can  only  be  relieved  of  the  trust  and  divested  of  the 
estate  by  the  order  oi  a  court  oi  competent  jurisdiction.^^ 

§  298.  Construction  and  Effect.  An  assignment  for  the  benefit 
oi  creditors,  conveying  property  to  trustees  with  power  to  sell  and 

l»  This  matter  is  wholly  statutory.  Brown   v.    Chamberlain,   9   Fla.    464; 

Consult  local  statutes.  Hall   v.   Dennison,   17   Vt.   310. 

20  Kingman    v.    Barton,    24    Minn.  22  Biennan    v.    Willson,    71    N.    Y. 

295.  502;    Thrasher   v.    Bently,    59   N.    Y. 

81  Hyde  v.  Olds,  12  Ohio  St.  591;  649. 
Forbes    v.     Scannell,     13     Cal.    242; 


§  300]  ASSIGNMENTS,    INSOLVENCY   AND   BANKRUPTCY.  329 

to  apply  the  proceeds  in  payment  of  debts,  is  an  absolute  convey- 
ance, by  which  both  the  legal  and  the  equitable  estate  is  divested 
out  of  the  grantor  and  vested  in  the  assignee,  subject  to  the  uses 
and  trusts  in  favor  of  the  creditors.^^  "An  assignment,"  says 
Burrill,^*  "is  more  than  a  security  for  the  payment  of  debts;  it  is 
an  absolute  appropriation  of  the  property  to  their  payment.  It 
does  not  create  a  lien  in  favor  of  creditors  upon  property  which, 
in  equity,  is  still  regarded  as  the  assignor's,  but  it  passes  both  the 
legal  and  equitable  title  to  the  property  absolutely  beyond  the  con- 
trol of  the  assignor.  There  remains,  therefore,  no  equity  of  re- 
demption in  the  property,  and  the  trust  which  results  to  the  as- 
signor in  the  unemployed  balance  does  not  indicate  such  an 
equity."  The  title  in  the  hands  of  the  assignee  is  relieved  of  none 
of  its  burdens,  but  remains  subject  to  all  existing  liens  and  equi- 
ties.25 

§  299.  Conflict  of  Laws — Foreign  Assig-nments.  Deeds  of  as- 
signment are  governed  by  the  same  general  rules  as  other  con- 
veyances, and  when  executed  in  one  State  but  including  or  op- 
erating upon  lands  in  another,  their  validity  and  effect,  as  instru- 
ments of  conveyance  of  such  lands,  must  be  determined  by  the 
laws  of  the  latter  State.^®  They  have  no  extraterritorial  force,  yet, 
on  principles  of  comity,  an  assignment  valid  in  the  State  where  it 
is  made,  and  where  the  assignor  resides,  will  generally  be  per- 
mitted to  operate  on  the  assets  of  such  assignor  in  each  of  the 
other  States.^'' 

§300.  Insolvency.  A  special  procedure  is  provided  in  most  of 
the  States  for  the  distribution  of  the  estate  and  effects  of  insolvent 
debtors,  and  their  subsequent  discharge  from  the  debts  thus  sat- 
isfied. Such  proceedings  have  the  same  general  effect,  within  the 
jurisdiction  of  the  State,  as  proceedings  under  the  national  bank- 
rupt law,  and  to  which  they  bear  a  strong  analogy.  During  the 
continuance  of  the  bankrupt  law,  however,  their  operation  is  sus- 
pended, and  owing  to  this  and  the  infrequency  with  which  the 

23Dwight     V.      Overton,     32     Tex.  25  Williams  v.   Winsor,   12  E.  I.  9. 

.190;   Van  Keuren  v.  McLaughlin,  21  26  Story,    Conflict   of   Laws,    §364; 

N.   J.  Eq.   163;    Briggs  v.   Davis,   21  Cutler    v.     Davenport,     1     Pick.     81; 

N.  Y.  574.  Loving    v.    Paire,     106    Iowa,    282; 

24Burrill      on      Assignments,      12;  Gardner     v.     Com.     Nat.     Bank     of 

and  see,  Briggs   v.  Davis,   21  N.   Y.  Providence,  95  111.  298. 

577;    Hoffman    v.    Mackall,    5    Ohio  27Mowr7   v.   Crocker,   6   Wis.    326. 
St.     124;     Turner     v.     Watkins,     31 
Ark.  437. 


330  ABSTRACTS   OP   TITLE.  [§  300 

remedy  lias  been  used,  but  few  instances  will  occur  where  con- 
veyances have  been  made  under  same.  The  examples  which  fol- 
low, of  abstracts  of  proceedings  under  the  national  bankrupt  laws, 
will  serve  as  illustrations  of  the  method  of  showing  State  insolvency 
matters  whenever  they  may  occur.  The  validity  of  titles  so  de- 
rived is  a  matter  of  local  law  and  construction. 

§  301.  Bankruptcy.  At  the  date  of  this  writing  a  national  bank- 
nipt  law,  passed  in  1898,  is  in  force,  under  which  many  transfers 
have  boon  made.  Numerous  transfers  under  the  operation  of  past 
laws  will  also  be  found  of  record.  Proceedings  by  virtue  of  the 
act  of  ]841  require  but  slight  notice,  the  rights  of  all  parties  there- 
under having  become  permanently  established  by  the  effluxion  of 
time.  Proceedings  and  conveyances  under  the  act  of  1867  should 
be  shown  in  greater  detail,  yet  even  here,  in  many  instances,  only 
a  brief  synopsis  seems  necessary.  The  operation  and  effect  of  the 
law  of  1898  being  recent  and  continuous,  more  attention  to  details 
will  be  required. 

§  302.  Jurisdiction  and  Practice.  By  the  bankrupt  act  of  1867  ^8 
the  District  Courts  of  the  United  States  were  given  original  and 
exclusive  jurisdiction  and  power  over  all  "acts,  matters  and  things 
to  be  done  under  and  by  virtue  of  the  bankruptcy,"  and  were 
authorized,  by  summary  proceedings,  to  administer  all  the  relief 
which  a  court  of  equity  could  administer  under  the  like  circum- 
stances upon  regular  proceedings.^^  A  revisory  jurisdiction  was 
further  conferred  upon  the  federal  circuit  courts,  but  all  initiate 
proceedings  were  confined  to  the  district  courts,  which,  when  sitting 
as  courts  of  bankruptcy,  Avere  regarded  as  separate  courts,  exer- 
cising powei"S  and  a  jurisdiction  distinct  from  their  powers  as 
district  courts  as  originally  constituted.'"  Such  courts  were  per- 
mitted to  exercise  extraterritorial  jurisdiction  in  collecting  the 
estate  and  adjusting  the  claims  of  the  creditors  of  the  bankrupt, 
but  in  all  matters  of  controversy  touching  the  rights  of  the  as- 
signee under  the  assignment,  when  the  subjects  in  dispute  were 
of  a  local  nature,  the  rights  of  parties  could  only  be  determined 
by  actions  in  local  courts.'^  The  act  of  1898  also  gives  jurisdic- 
tion of  proceedings  in  bankruptcy  to  the  District  Court,  but  the 

28  U  Stat,  at  Large,  520.  aONorris'    Case,    1    Abb.    (U.    S.) 

29  Matter  of  Wallace,  Deady,  433;       514. 

Newman    v.     Fisher,    37     Md.     259;  31  Whitridge    v.    Taylor,    66    N.    C. 

Voorhees  v.  Frisbie,  25  Mich.  476.  273. 


§  305]  ASSIGNMENTS,   INSOLVENCY   AND   BANKRUPTCY.  331 

procedure  differs  in  many  respects  from  that  observed  under  for- 
mer laws. 

§  303.  Classification.  Bankruptcy  is  either  voluntary,  when 
precipitated  by  the  debtor's  own  actj  or  involuntary,  when  pro- 
duced by  the  action  of  the  creditors,  the  effect  upon  the  property 
of  the  bankrupt  being  the  same  in  either  case.  In  both  instances, 
it  is  initiated  by  the  filing  of  a  petition,  and  consummated  by  ad- 
judication. When,  after  adjudication  and  before  any  assignment 
has  been  made,  a  composition  is  effected  and  the  bankrupt  dis- 
charged, there  seems  no  good  reason  why  the  abstract  should  be 
encumbered  by  details  which  are  immaterial  to  the  title,  and  such 
proceedings  may  be  safely  omitted.^'^ 

§  304.  Nature  and  Effect  of  Bankruptcy.  A  person  adjudicated 
a  bankrupt  is  deemed  a  bankrupt  from  the  day  on  which  he  files 
his  petition,  and,  from  the  moment  the  petition  is  filed,  so  far  as 
his  property  is  concerned,  he  is  considered  as  civilly  dead.  Dur- 
ing the  interval  existing  between  the  filing  of  the  petition  and  the 
appointment  of  a  trustee,^^  a  condition  of  things  exists  not  unlike 
that  before  the  appointment  of  an  administrator  in  the  case  of  a 
person  dyiag  intestate,  no  one  being  authorized  to  dispose  of  or 
assign  his  assets.^*  Under  the  law  of  1867  a  voluntary  bankrupt 
was  intrusted  with  the  care  of  his  estate  before  an  assignee  was 
chosen,  as  a  sort  of  trustee,  and  in  involuntary  proceedings  a  war- 
rant issued  to  the  U.  S.  marshal,  who,  as  the  messenger  of  the 
court,  took  possession  provisionally  of  all  the  bankrupt's  prop- 
erty.^^  Under  the  law  of  1898  a  receiver  may  be  appointed  to 
hold  the  bankrupt's  property  pending  an  adjudication,  or,  in  in- 
voluntary cases,  a  warrant  may  issue  to  the  marshal  as  heretofore. 

§  305.  Procedure.  It  is  assumed  that  both  examiner  and  coun- 
sel are  familiar  with  the  general  procedure  of  the  bankruptcy 

32  This    is    on    the    principle    that  deprive   him   of  the  power,   whUe  the 

the   matter   possesses   no   more    force  discharge   restores   same, 
than     a     satisfied     judgment,     -which  33  Under   the   law   of    1867   an   as- 

is   neither   a   lien   nor   a   cloud   upon  signment  was  made,  the  assignee  oc- 

the   title,   but   only   a   clog   upon   the  cupying    much   the    same   position   as 

examiner's    efforts    when    shown    in  a   trustee  under   the   present   law. 
an    abstract.      Many    examiners    pre-  34  Johnston    v.    Geisriter,    26    Ark. 

fer,  however,  to  briefly  allude  to  the  44. 

filing   of   the   petition   and   discharge,  35  In    re    Muller,    Deady,    513;    In 

as   the   bankrupt,   during  this  period,  re    Ilarthill,    4    Ben.    448;    Williams 

has  no  power  of  disposition  over  his  v.    Merritt,    103    Mass.    184;     In    re 

effects;     the    adjudication    being    to  C'arow,  41  How.  Pr.    (N.  Y.)    112. 


332  ABSTRACTS   OP   TITLE.  [§  305 

louit,  aiid  this  chapter  is  prepared  on  that  hypothesis.  It  may  be 
well,  however,  to  briefly  direct  the  attention  of  the  reader  to  the 
changes  of  method  which  are  noticeable  in  the  present  law  when 
compared  with  the  former  practice.  Under  the  law  of  1867  the 
proceedings  were  conducted  under  the  direction  and  supervision 
of  an  officer  called  "Register  in  Bankruptcy,"  and  whenever  it 
became  necessary  to  administer  the  bankrupt's  estate  a  fonnal 
transfer  of  his  property  w^as  made  by  the  Register  to  an  officer 
called  an  "Assignee."  In  virtue  of  the  authority  thus  conferred 
the  assignee  took  possession  of  the  property,  and,  if  necessary,  sold 
it  to  satisfy  the  bankrupt's  debts. 

Under  the  law  of  1898,  after  an  adjudication  of  bankruptcy  has 
been  entered  by  the  court,  the  matter  is  sent  to  an  officer  called  a 
"Referee,"  who  thereafter  conducts  the  proceedings.  In  the  event 
that  the  creditors  shall  so  desire  a  "Trustee"  is  appointed  to  take 
the  debtor's  property  and  convert  it  into  money.  Upon  his  ap- 
pointment and  qualification  the  Trustee  becomes  invested,  by  op- 
eration of  law,  with  all  of  the  bankrupt's  titles  and  rights  of 
ownership,  except  statutory  exemptions,  as  they  existed  at  the 
date  of  the  adjudication.^^*  Whenever,  in  the  course  of  the  pro- 
ceeding, the  lauds  of  the  bankrupt  are  sold  the  title  thereto  is  con- 
veyed to  the  purchaser  by  the  trustee.  The  law  permits  the  ap- 
pointment of  a  single  trustee  or  a  board  of  three  trustees.  When- 
ever three  trustees  are  appointed  the  concurrence  of  at  least  two 
of  them  are  necessary  to  the  validity  of  every  act  concerning  the 
administration  of  the  bankrupt's  estate.^^ 

§306.  Bankruptcy  Proceedings — How  Shown.  As  in  chancer/ 
proceedings,  only  a  brief  outline  of  the  procedure  of  the  bank- 
ruptcy court  can  well  be  shown  in  the  abstract,  which  in  cases  of 
this  nature  is  rather  an  index  than  a  transcript.  Sufficient,  how- 
ever, should  be  given  to  show  the  apparent  regularity  of  the  pro- 
ceedings, and  the  degree  of  detail  may  be  regulated  by  the  wishes 
of  the  client.  After  confirmation,  a  sale  by  the  assignee  or  trustee 
stands  in  the  same  relative  position,  with  respect  to  irregularities, 
etc.,  in  anterior  proceedings,  as  other  sales  in  chancery,  and  such 
anterior  proceedings  require  no  greater  elaboration.  With  such 
changes  as  may  be  necessary  to  suit  the  exigencies  of  particular 
cases,  the  following  will  afford  a  sufficient  example.  This  proceed- 
ing, it  will  be  observed,  is  under  the  law  of  1867. 

36«  Act.   1898,  §  70. 
88  See,    U.    S.    Comp.    Stat.    1918, 
S  9631. 


§  306]  ASSIGNMENTS,    INSOLVENCY    AND    BANKRUPTCY.  333 

U.  S.  District  Court, 
1       Northern  District  of  Illinois. 
In  the  matter  of  the  estate  of         Case  No.  1,000. 


Andrew  Smith, 
Bankrupt. 


Petition  filed  Nov.  10,  1868.^'' 
Schedule  of  assets  and  liahili- 
ties  mentions,  [here  set  out  so 
much  of  the  real  estate  described  as  is  covered  by  the  caption  of  the 
abstract;  or,  if  not  mentioned,  say:  does  not  mention  property  in 
question.]  Adjudication  entered  Nov.  16,  1868.^^  Robert  E. 
Jenkins  appointed  assignee  Nov.  16,  1868. 

Petition  of  said  assignee,  filed  Dec.  1,  1868,  praying  leave  to 
sell  assets  of  said  estate  at  puMic  auction,  etc. 

Order  efitered,  Dec.  2,  1868,  authorizing  said  assignee  to  sell 
assets  as  prayed  for  in  said  petition,  after  giving  three  weeks' 
public  notice  hy  publication,  etc.,  and  ten  days'  notice  by  mail  to 
creditors. 

Assignee's  repmi  of  sale,  with  proof  of  publication  and  notice 
of  sale  attached,  filed  February  1,  1869,  showing  sale  of  [here  set 
out  the  description  of  property  sold  if  covered  by  the  search;  or, 
if  only  one  piece  is  named  in  schedule,  or,  if  all  the  property 
named  in  schedule  is  sold  to  one  person,  say:  the  lands  described 
in  schedule  of  assets  and  above  set  forth]  to  Alexander  Hamilton 
for  $10,000. 

Assignee's  report  of  sale  approved  and  sale  confirmed  February 
10,  1869. 

The  subsequent  proceedings,  relative  to  the  discharge  of  the 
bankrupt  are  immaterial,  as  he  has  now  been  divested  of  all  title 
to  the  land  in  question;  but  should  the  examiner  desire  to  add  a 
symmetrical  close  to  his  synopsis  of  the  action  of  the  bankruptcy 
court,  he  may  add : 

Petition  for  discharge  filed  March  1,  1869. 
Register's  final  report  filed  March  10,  1869. 
Discharge  entered  and  issued  May  1,  1869. 

37  An  assignment  in  bankruptcy  the  examiner's  discretion,  be  en- 
relates  to  the  commencement  of  the  tered  immediately  following.  In- 
proceeding,  and  the  title  of  the  as-  asnmch  as  such  proceedings  shed 
signee  becomes  vested  as  of  that  date.  no  light  on  the  title  they  are  not 
International  Bank  v.  Sherman,  101  ijiserted  in  the  form  above  given, 
U.  S.  403.                          '■  They    would    consist    of    the    dates, 

38  In  case  there  should  have  been  severally,  of  the  entering  and  filing 
a  composition  and  subsequent  dis-  of  the  petition  for  compositiOD 
charge,    the   notes    of    same   may,   in  meeting;     the    Register's    report    of 


M34 


ABSTRACTS   OP   TITLE. 


[§30G 


'I'lu'  furiguiiij^  will  jiuygest  the  method  to  be  followed  in  pre- 
pai'iny;  a  synopsis  ol"  proceedings  under  the  law  of  1898.  This 
should  show  the  filing  of  petition ;  the  steps  taken  before  tlie  Ref- 
eree; the  adjudication  and  appointment  of  Trustee,  together  with 
such  further  measures  us  may  be  necessary,  which  relate  to  the 
sale  of  land  and  the  confirmation  of  such  sale. 

§  307.  The  Assignment.  The  synopsis  given  in  the  last  section 
'is  taken  from  the  rolls  of  the  district  court,  and  shows  the  general 
course  of  the  proceedings  under  the  law  of  1867.  The  formal 
instrument,  however,  by  which  the  assignee  acquired  the  legal 
title,  was  an  assignment  by  the  Register,  which  was  duly  recorded 
as  a  title  deed  in  the  registry  of  deeds  of  the  county  wherein  the 
land  was  situate,  and  in  the  abstract  it  may  be  shown  as  follows: 


Hamer  N.  Eihhard,  one  of^ 
the  Registers  in  Bank- 
ruptcy of  the  District 
Court  of  the  U.  S.  for 
the  Northern  District  of 
Illinois, 

to 

Robert  E.  Jenkins,  as- 
signee of  Andrew  Smith, 
Bankrupt. 


Assignment. 

Dated  Nov.  16,  1868. 

Recorded  Nov.  17,  1868. 

Book  691,  page  625. 

Conveys  and  assigns  all  the  estate, 
real  and  personal,  of  said  Andrew 
Smith,  bankrupt,  including  all  the 
property,  of  whatever  kind,  of  which 
he  was  possessed,  or  in  which  he  was 
interested    or    entitled    to   have,   on 


Nov.  10,  1868,  with  all  his  deeds, 
hooks  and  papers  relating  thereto,  excepting  such  property  as  is 
exempted  from  the  operation  of  this  assignment  hy  the  provisions 
of  Sec.  5045,  of  title  61,  Bankruptcy,  of  the  Revised  Statutes  of 
the  United  States.^^ 

In  trust,  for  the  uses  and  purposes,  with  the  powers,  and  sub- 
ject to  the  conditions  and  limitations  set  forth  in  said  act. 


composition,  and  decree  confirming 
same;  the  E«gister's  report  of  com- 
pliance and  final  discharge. 

39  It  should  be  remembered  that 
only  the  property  actually  owned  by 
the  bankrupt  passes  by  this  assign- 
ment, and  hence  where  such  bank- 
rupt possesses  the  legal  title  only, 
but  no  beneficial  interest,  the  title 
does  not  vest  in  the  assignee  and 
cannot  be  conveyed  by  him  (Rhodes 
V.      Blackiston,      106      Mass.      334) ; 


and  the  mere  fact  that  the  assignee 
inventories  certain  land  as  belonging 
to  the  estate  of  the  bankrupt,  and 
sells  and  conveys  same  under  order 
of  court,  does  not  operate  as  an 
adjudication  that  the  land  was  the 
proiicrty  of  the  bankrupt  at  the  time 
of  the  filing  of  the  petition,  but  only 
that  whatever  ot  title  the  bankrupt 
then  had  is  conveyed  to  the  pur- 
chaser: Wilkins  v.  Tourtellott,  28 
Kan.  825. 


§  308]  ASSIGNMENTS,   INSOLVENCY   AND   BANKRUPTCY.  335 

This  presents  substantially  the  contents  of  the  assignment,  and 
conveys  all  the  information  necessary  to  be  shown  in  the  abstract, 
but  should  the  examiner  so  desire  he  may  set  forth  the  instrument 
in  greater  detail.  Under  the  law  of  1898  all  property  of  the  bank- 
rupt which,  "prior  to  the  filing  of  the  petition,  he  could  by  any 
means  have  transferred, ' '  vests  in  the  trustee  immediately  upon  his 
appointment.^* 

§308.  Assignee's  or  Trustee's  Deed.  In  order  to  present  the 
synopsis  of  bankruptcy  proceedings  in  a  connected  manner,  and  as 
it  should  appear  in  the  abstract,  it  is  deemed  advisable  to  give  the 
assignee's  deed  in  this  place  rather  than  where  it  more  properly 
belongs,  in  the  chapter  devoted  to  official  conveyances.  These 
deeds,  like  other  conveyances  by  trustees,  are  usually  long  and 
prolix,  and  considerable  discrimination  must  be  exercised  in  pre- 
paring the  abridgment,  in  order  to  present  everything  that  can 
shed  light  on  the  transaction  and  yet  avoid  burdening  the  abstract 
with  unnecessary  particulars  of  useless  verbiage.  The  following 
form,  prepared  from  a  long  and  technical  deed,  will  serve  to 
explain  the  meaning  of  these  remarks  and  illustrate  the  methods 
described : 


Robert  E.   Jenkins,  Assignee^ 
in   Bankruptcy   of   the   Es- 
tate and  Effects  of  Andrew 
Smith,  Bankrupt, 
to 
Alexander  Hamilton. 


Assignee's  Deed.^^ 
Dated  Feb.  10,  1869.  '    I 

Recorded  Feb.  12,  1869. 
Book  100,  page  200. 
Sets  forth  that,  in  accordance 
with  the  provisions  of  the  Revised 
Statutes  of  the  United  States, 
Title  ''Bankruptcy,"  a  petition  was  filed  in  the  District  Court  of 
the  United  States  for  the  Northern  District  of  Illinois,  on  Nov.  10, 
1868,  by  said  Andrew  Smith,  and  on  Nov.  16,  1868,  said  Andrew 
Smith  was  duly  adjudged  and  declared  bankrupt;  and  on  Nov.  16, 
1868,  said  Robert  E.  Jenkins  was  duly  appointed  assignee  of  the 
estate  and  effects  of  said  bankrupt  by  H.  N.  Hibbard,  one  of  the 
Registers  in  Bankruptcy  of  said  Court,  which  said  appointment 
was  thereafter  duly  approved  and  confirmed  by  said  Court,  and 

39a  Act.  1898    §  70.  signee,    needs   no    other    recitals    and 

40  This    is    an    abridgement    of    a  will    be    good,    if    in    other    respects 

deed  under  the  law  of  1867.     Under  sufficient,  the  same   as  a  deed  made 

the  law  of  1841  a  deed  containing  a  by   the   bankrupt   before   the   adjudi- 

copy    of    the    decree    of    bankruptcy  cation;   Eyder  v.  Eush,  102  111.  338. 
and   of   the    appointment   of    the    as- 


336  ABSTRACTS   OF   TITLE,  f§  308 

on  Nov.  16,  186S,  said  Register  conveyed  and  assigned  to  said  Jen- 
kins, fl.<?  such  assignee,  all  the  estate,  real  ayrd  personal,  of  said 
hanlrnpt,  including  all  the  property  of  whatsoever  kind,  of  which 
said  hanlrupt  ivas  possessed,  or  in  which  he  tras  interested,  or 
which  he  was  entitled  to  have  on  Nov.  10, 1869  (excepting  only  such 
property  as  is  excepted  hy  the  5045th  section  of  said  Revised 
S!tafutes). 

That  said  bankrupt,  Andrew  Smith,  appears  to  have  been,  on 
said  last  menti&ned  date,  possessed  of  or  entitled  to  an  interest  in 
real  estate  and  property  hereinafter  mentioned.  And  said  assignee 
having  first  given  notice,  by  pnhlication  once  a  week,  for  three 
consecutive  weeks,  pursuant  thereto,  on  Feb.  1,  1869,  offered  for 
sale,  and  sold  said  real  estate  and  property  at  public  auction,  and 
of  said  sale,  second  party  was  the  highest  bidder,  and  became  the 
purchaser  thereof  for  $10,000.00;  which  sale  was,  on  Feh.  10,  1869, 
approved  and  confirmed  by  said  Court,  and  said  Court  did,  on 
the  day  and.  year  last  named,  order  and  direct  said  assignee  to 
execute  and  deliver  to  said  seconds  party  a  deed  for  the  real  estate 
so  sold,  conveying  the  same  to  him,  in  accordance  with  the  terms 
of  said  sale. 

Now,  therefore,  in  consideration  of  the  premises,  and  $10,000.00, 
remises,  releases,  sells,  conveys  and  quitclaims,  all  the  right,  title, 
interest,  estate,  claim  and  demand  of  said  bankrupt,  ivhich  he  had 
on  Nov.  10,  1868,  and  of  said  Robert  E.  Jenkins,  as  assignee  afore- 
said, in  and  to  the  following  described  real  estate,  to  wit:  [Here 
set  out  the  description  of  the  property  conveyed,  employing  the 
lancniapre  of  the  deed],  witli  all  the  improvements,  rights,  priv- 
ileges and  appurtenances  thereto  belonging,  but  subject  to  all  un- 
paid taxes  and  tax  liens,  and  to  all  liens  and  incumbrances,  unless 
expressly  excepted,  released  or  discharged  by  the  orders  of  said 
Court,  concerning  said  sale,  and  subject  to  all  the  terms  and  con- 
ditions of  said  sale. 

Certificate  of  acknowledgment,  dated  Feb.  10,  1869. 

The  foregoing  will  serve  to  suggest  the  treatment  of  a  trustee's 
deed  under  the  law  of  1898,  and  the  manner  in  which  its  recitals 
should  he  shown. 

The  title  conveyed  hy  the  assignee  or  trustee  is  no  better  than 
that  held  by  the  bankrupt,  and  the  purchaser  takes  it  charged  with 
all  the  equities  to  which  it  was  subject  in  his  hands,"  and  bur- 

41  Walker  v.  Miller,  11  Ala.   1067; 
Stow   V.   Yarwood,  20   HI.   497;    Har- 


§  309]  ASSIGNMENTS,    INSOLVENCY   AND   BANKRUPTCY. 


337 


dened  with  all  liens,  by  mortgage  or  judgment,  which  existed 
against  him  at  the  time  of  his  adjudication. 

§  309.  Discharge  in  Bankruptcy.  The  effect  of  an  adjudication 
in  bankruptcy  being  to  deprive  the  person  adjudged  a  bankrupt 
of  his  power  to  take  or  convey  property  while  resting  under  such 
sentence,  it  is  proper  that  his  restoration  to  civil  rights  should  also 
be  shown  whenever  the  abstract  discloses  him  in  the  character  of 
a  grantor  or  grantee  after  such  adjudication.  This  may  be  accom- 
plished by  a  simple  note  of  the  fact.  Where  a  composition  has 
been  effected,  such  note  would  be  given  in  connection  with  a  brief 
reference  to  the  petition  and  proceedings  in  the  bankruptcy  court. 
Where  the  debtor's  property  has  passed  from  him  to  the  assignee, 
or  where  a  trustee  has  been  appointed,  and  the  subject  of  the  ex- 
amination consists  of  property  in  which  the  bankrupt  has  acquired 
an  interest  since  the  date  of  such  assignment  or  appointment,  the 
fact  of  discharge  may  be  shown  as  an  independent  circumstance, 
its  legal  import  being  merely  to  show  the  removal  of  disability; 
thus, 


din  V.  Osborne,  94  111.  571.  In  this 
case,  the  court  held  that  an  assignee 
in  bankruptcy  does  not  take  the 
title  to  the  property  of  the  bank- 
rupt as  an  innocent  purchaser  with- 
out notice,  free  from  latent  equities, 
etc.,  but  as  a  mere  volunteer,  stand- 
ing in  the  shoes  of  the  bankrupt, 
as  respects  the  title,  and  having  no 
greater  rights  in  that  regard  than 
the  bankrupt  himself  could  assert. 
The  bankrupt  had,  prior  to  the  time 
he  was  adjudged  a  bankrupt,  con- 
veyed land,  but  the  deed  remained 
unrecorded,  and  the  court  held,  that 
no  title  would  pass  to  the  assignee 
as  against  the  purchaser  holding  un- 
der the  prior  unrecorded  deed. 
"Suppose,"  said  Walker,  C.  J., 
"the  debts  had  been  paid  without 
the  sale  of  the  land,  does  any  one 
suppose  the  bankrupt  could  have  held 
it  against  his  former  grantee,  whether 
or  not  his  grantee  had  recorded  his 
deeds?  Where  the  purchaser  had 
paid  his  money,  and  received  the 
conveyance,  his  equities  are  surely 
equal  to  that  of  other  creditors.  His 
Warvelle  Abstracts — 22 


deed  operated  to  convey  to  him  the 
title,  and  the  creditors  have  ad- 
vanced nothing  to  procure  a  lien  on 
the  land,  and  the  appointment  only 
operated  as  a  transfer  of  whatever 
interest  the  bankrupt  held  for  the 
benefit  of  his  creditors."  But  the 
learned  judge  further  observes: 
"If,  however,  in  such  a  case  the 
assignee  were  to  sell  and  convey 
the  land  to  an  innocent  purchaser 
without  notice,  and  he  were  to  place 
his  deed  on  record  before  that  of 
the  prior  purchaser,  a  different  case 
would  be  presented."  In  the  case 
of  Holbrook  v.  Bickenson,  56  111. 
497,  where  the  assignee  had  sold 
the  land  under  a  similar  state  of 
facts,  it  was  held  that  the  prior 
purchaser  could  not  set  up  or  show 
his  unrecorded  deed  to  defeat  the 
title  of  the  assignee's  grantee,  and 
this  is  the  generally  received  doc- 
trine resulting  from  the  plain  con- 
struction of  the  recording  acts. 
And  see  Bank  v.  Stone,  80  Ky.  109; 
Wilkins    v.    Tourtellott,    28    Ky.    285. 


338 


ABSTRACTS   OF    TITLE. 


[§309 


In  the  matter  of  the 
hankmptcy 

of 
James  L.  Sherman. 


In  the  U.  S.  District  Court, 

Northern  District  of  Illinois. 

Case  No.  3,529. 

Voluntary  Petition. 

Filed  Dccemhcr  19,  1877. 

Discharge  entered  and  issued 
to  said  Bankrupt,  February  28, 
1879. 


The  prenoral  effect  of  a  discharge  in  bankruptcy  is  to  free  the 
bankrupt  from  all  liability  with  respect  to  debts  proved  against 
his  estate,  as  well  as  all  debts  founded  on  contracts  made  by  him 
which  might  have  been  so  proved. 


CHAPTER  XIX. 


AGREEMENTS  FOR  CONVEYANCE. 


§  310.     Land  contracts. 

§  311.  Eelation  of  parties  under 
land  contracts. 

§  312.     Effect  and   operation. 

§  313.     Nature   and   requisites. 

§  314.     As  affected  by  recording  acts. 

'§  315.  Construction  of  land  con- 
tracts. 


§316. 

Formal   parts. 

§317. 

Assignment  of  the  contract. 

§  318. 

Performance  —  Sufficiency    of 

deed  and  title. 

S319 

Forfeited  contracts. 

S  320. 

Bond  for  deed. 

§321. 

Agreement  for  conveyance  by 

will. 

§  310.  Land  Contracts.  Land  contracts,  or  agreements  to  deed, 
are  of  frequent  occurrence  on  the  records,  and  occasionally  bonds 
for  the  same  purpose  will  be  found,  though  these  latter  are  now 
practically  obsolete.  Should  the  contract  be  executory  its  con- 
tents should  be  set  forth  with  considerable  minuteness,  partic- 
ularly such  parts  as  relate  to  the  parties,  the  subject-matter,  and 
the  conditions  of  conveyance.  If,  on  the  contrary,  the  contract 
has  been  consummated  by  deed,  a  passing  allusion  to  it,  as  part  of 
the  chain  of  title,  will  be  sufficient.  Where  the  subsequent  deeds 
do  not  show  a  substantial  compliance,  a  full  synopsis  may  become 
material,  although  the  contract  has  been  executed,  and  the  ex- 
aminer should,  as  a  precautionary  measure,  first  satisfy  himself 
on  this  point  before  abstracting  the  instrument.  In  executed  con- 
tracts, however,  this  is  not  of  vital  importance,  for  acceptance  of  a 
deed  ordinarily  merges  any  provisions  of  the  contract  of  sale  which 
are  different  from  the  deed.^ 


1  Davenport  v.  Whisler,  46  Iowa, 
287;  Bull  v.  Willard,  9  Barb.  641; 
Jones  V.  Wood,  16  Pa.  25.  This  is 
the  accepted  doctrine,  yet  it  is  sub- 
ject to  large  qualification.  The 
actual  contract  as  shown  by  the 
agreement,  will  still  be  competent, 
where  through  fraud,  inadvertence 
or  mistake,  a  different  deed  has 
been  delivered;  Snell  v.  Insurance 
Co.,  98  U,  S.  85,  and  cases  cited. 
Where  there  has  been,  by  mutual 
mistake,  a  failure  to  embody  in  the 


deed  the  actual  agreement  of  the 
parties  as  evidenced  by  the  prior 
written  agreement,  and  the  meaning 
of  the  prior  agreement  is  clear,  and 
nothing  has  occurred  between  the 
parties  after  it  was  signed  and  de- 
livered to  vary  its  terms,  except 
the  mere  fact  of  the  delivery  of  the 
deed,  and  the  deed  not  effecting 
what  both  parties  intended  by  the 
actual  contract  which  they  had 
made,  a  court  of  equity  will  inter- 
fere   and   reform    the   deed    so   given 


339 


340  ABSTRACTS   OP   TITLE,  [§311 

§  311.  Relation  of  Parties  Under  Land  Contracts.  The  relation 
subsistintj  between  the  parties  to  an  onlinary  eontrae-t  ior  the 
conveyance  of  hind  upon  the  future  payment  of  the  purcliase 
money,  is  analogous  to  that  of  equitable  mortgagor  and  mortgagee, 
the  vendor  holding  the  legal  title  as  security  for  the  unpaid  pur- 
chase money,  which  security  is  essentially  a  mortgage  interest. 
The  vendee  has  an  equity  of  redemption,  and  the  vendor  a  cor- 
relative right  of  foreclosure  upon  default  in  the  payments.^  In 
this,  as  in  other  cases,  the  mortgage  is  the  incident,  the  debt  the 
principal,  and  tlie  vendor  has  no  further  interest  except  to  the 
extent  of  the  security  the  mortgage  affords  for  his  debt.^ 

§312.  Effect  and  Operation  of  the  Contract.  The  effect  of  a 
valid  contract  for  the  conveyance  of  land,  is  to  vest  in  the  vendee 
the  equitable  estate  in  the  land,  leaving  the  legal  title  in  the  vendor 
as  a  mere  lien  or  security  for  the  unpaid  purchase  money.*  The 
vendor,  in  such  case,  is  simply  a  trustee  having  an  interest  in  the 
proceeds  but  not  in  the  land,  and  this  interest,  upon  his  decease, 
would  pass  to  his  pei-sonal  representatives  and  not  to  his  heirs. 
The  heirs  would,  it  is  true,  take  the  legal  title  by  descent,  but 
only  as  it  was  vested  in  the  ancestor,  which  was  as  a  mere  security 
for  the  debt.  The  debt  being  due  to  the  administrators  or  exec- 
utors of  the  vendor,  and  the  lien  being  considered  as  held  by  the 
heirs  in  trust,  and  simply  as  a  pledge  or  security  for  its  payment, 
on  payment  of  the  debt  the  heirs  would  be  compellable  in  equity 
to  execute  the  trust  by  the  conveyance  of  the  title,  while  the  pur- 
chase money  would  go  to  the  personal  representatives.*  The  equity 
is  a  proper  subject  of  devise  by  the  vendee,  or,  in  the  event  of  his 
dying  intestate  will  descend  to  his  heirs  the  same  as  other  realty, 
and  in  them  is  vested  the  equity  of  redemption. 

in      accordance      with      the      orginal  4  Reed    v.     Lukens,    44     Pa.     200; 

and     manifest    intention:     Elliot     v.  Gary   v.   Whitney,  48   Me.   516;    Mil- 

Sackett,    108    U.    S.    132.      It    would  ler  v.  Corey,  15  Iowa,  166. 

seem,  therefore,  that  in  case  of  dis-  6 Gerard's   Tit.   to   Eeal   Est.   472; 

crepancy    or    repugnancy    the    agree-  Johnson   v.    Corbett,    11    Paige,    265; 

ment     should     be     fully     abstracted  Moore    v.    Burrows,    34    Barb.     173. 

or    at    least    sufficient    thereof    given  The    agreement    to    deed,    above    re- 

to  show  the  repugnancy.  ferred     to,    is    very    different    from 

2  Church  V.  Smith,  29  Wis.  492;  the  contract  of  purchase  or  con- 
Button  V.  Schroyer,  5  Wis.  598;  ditions  of  sale,  under  the  English 
King  V.  Ruckman,  21  N.  J.  Eq.  system  of  conveyancing.  The  former 
599;  Baldwin  v.  Pool,  74  111.  97;  contemplates  a  sale  already  made,  the 
Fitzhugh  V.   Maxwell,  34  Mich.   138;  latter  a  sale  to  be  made. 

Dew  V.  Bellinger,  75  N.  C.  300. 

3  Strickland     v.     Kirk,     51     Miss. 
795. 


§  313]  AGREEMENTS  FOR  CONVEYANCE.  341 

§  313.  Nature  and  Requisites.  The  statute  of  frauds,  substan- 
tially re-enacted  in  all  the  States,  provides  that  no  action  shall 
be  brought  to  charge  any  person  upon  any  contract  for  the  sale  of 
lands,  unless  such  contract  or  some  note  or  memorandum  thereof 
shall  be  in  writing,  and  signed  by  the  party  to  be  charged  there- 
with, or  some  other  person  thereunto  by  him  lawfully  authorized, 
and  where  there  is  no  exception  contained  in  the  statute  the  courts 
will  not  create  any.^  No  special  form  is  required  as  an  evidence 
of  such  contract,  and  courts  seem  inclined  to  allow  a  wide  latitude 
in  this  particular.'''  The  statute  permits  the  memorandum  to  be 
signed  by  the  vendor  of  his  agent,  yet  it  seems  that  if  made  by 
an  agent  it  should  still  be  in  the  principal 's  name.*  If  the  terms  of 
the  contract,  the  consideration,  the  subject-matter  of  the  sale,  etc., 
are  stated  with  reasonable  certainty,  the  memorandum  is  suffi- 
cient. Form  is  not  important,  nor  need  it  be  under  seal,^  the  one 
indispensable  requisite  being,  that  it  be  in  writing  and  signed  by 
the  vendor  or  his  agent ;  ^°  and  the  power  to  the  agent,  unless  pro- 
vided otherwise  by  statute,  may  be  given  orally.^^ 

It  is,  however,  a  familiar  rule  in  this  branch  of  the  law,  that 
a  contract  which  equity  will  specifically  enforce,  must  be  certain 
in  its  terms,  and  the  certainty  required  has  reference  both  to  the 
description  of  the  property  and  the  estate  to  be  conveyed.  Uncer- 
tainty as  to  either,  not  capable  of  being  removed  by  extrinsic  evi- 
dence, will  invalidate  the  contract.^^  Less  particularity  is  re- 
quired, however,  than  in  case  of  actual  conveyances  of  the  same 
land,  and,  as  a  rule,  any  description  of  the  property  will  be  suffi- 
cient provided  it  be  such  as  to  enable  a  surveyor  to  locate  the 
land.^^  Every  contract  which  gives  no  means  of  identifying  the 
boundaries  of  the  land  sold,^*  which  furnishes  no  information  re- 
garding the  terms  of  the  contract,^^  or  which  by  faulty  or  imper- 

6  Hairston     v.     Jandon,     42     Miss.  14  Whelan    v.    Sullivan,    102    Mass. 

380.  204;     Holmes     v.     Evans,     18     Miss. 

7Bemi3  v.  Becker,   1   Kan.   226.  247. 

*  Morgan    v,    Bergen,    3    Neb.    209.  15  McGuire     v.     Stevens,    42     Miss. 

9  Moss  V.  Atkinson,  44  Cal.  5 ;  724.  The  writing  relied  upon  to  es- 
Ruttenberg  v.  Main,  47  Cal.  213.  tablish     such     a     contract    need     not 

10  Haydock  v.  Stow,  40  N.  Y.  describe  either  the  consideration  or 
363.  the    lands   which    are   the    subject    of 

11  Huttenberg  v.  Main,  47  Cal.  the  sale,  otherwise  than  by  a  refer- 
213;  McWhortcr  v.  McMahan,  10  ence  therein  to  some  extrinsic  fact 
Paige,  386.  or    instrument    by    means    of    which 

12  Whelan  v.  Sullivan,  102  Mass.  the  consideration  and  the  land  can 
204;    Peters   v.   Phillips,   19   Tex.   74.  be    known    with    sufficient    certainty: 

18  White   V.   Hermann,   51   lU.   243.      Washburn  v.   Fletcher,  42   Wis.   152. 


342  ABSTRACTS   OP   TITLE.  [§  314 

feet  description  renders  the  location  of  the  property  uncertain,*® 
will  be  incapable  of  specific  enforcement. 

§314.  As  Affected  by  the  Recording  Acts.  Interests  in  land 
acquired  through  contracts  of  purchase  fall  within  the  protection 
of  the  recording  acts.  Therefore,  although  another  may  be  inter- 
ested as  a  part  owner  of  land  sold  by  contract,  if  the  record  fails  to 
show  that  interest,  and  shows  the  entire  title  in  the  vendor,  the 
purchaser  from  the  apparent  ow'uer  of  record,  without  notice  of 
the  real  facts,  will  hold  the  title,  and  so  of  his  assignee.*'  This  is 
in  conformity  to  the  general  rule  of  law  which  provides  that,  in  the 
absence  of  actual  notice  of  the  true  state  of  a  title,  or  of  facts 
sufficient  to  put  him  on  inquiry  with  respect  thereto,  a  pai'ty  may 
always  rely  upon  the  record.*^ 

§  315.  Construction  of  Land  Contracts.  A  contract  for  the  sale 
of  land  is,  for  most  purposes,  regarded  in  equity  as  if  already 
specifically  executed.*^  When  consisting  of  two  instruments  they 
will  be  construed  together  and  effect  given  as  of  one  entire  instru- 
ment.^** Time,  unless  specifically  made  of  the  essence  of  the  con- 
tract, will  not  be  construed  to  the  disadvantage  of  the  vendee,  and 
a  contract  which  uses  the  ordinary  terms  to  express  the  time  for 
the  payment  of  the  purchase  money,  without  any  express  inten- 
tion that  such  time  is  material,  does  not  make  it  so.^* 

§  316.  Formal  Parts.  The  examiner  will  note  the  usual  inci- 
dents of  dates,  parties,  property,  etc.,  as  in  other  instruments,  and 
in  addition,  the  methods  of  transfer  and  conditions  and  stipula- 
tions annexed  to  the  contract,  if  any.  Though  usually  executed 
by  both  parties,  this  is  not  a  requisite,  and  an  executory  contract 
is  valid  and  binding  and  can  be  as  effectively  enforced  by  the 
vendee,  if  signed  by  the  vendor  alone.^'^  It  is  advisable,  however, 
particularly  where  the  contract  contains  mutual  covenants  or 
stipulations,  to  note  a  divergency  in  this  respect.  The  following 
is  submitted  as  a  synopsis  of  the  salient  features  of  an  ordinary 
executory  contract: 

ISGigos   V.    Cochran,    54    Ind.    593.  20  Beman  v.  Green,  1  Duer  (N.  Y.), 

17  Allen  v.  Woodruff,  96  111.   11.  :i82. 

18  Friend   v.   Ward,    126   Wis.    291,  21  Reed   v.   Jones,   8   Wis.   392. 

104  N.  W.  997,  1  L.  R.  A.   (N.  S.)  22  Vassault    v.     Edwards,    43     Cal. 

891;    Ogle  v.   Turpin,   102   111.   148.  458;     Ewins    v.    Gordon,    49    N.    H. 

19  King     V.     Ruckman,     21     N.     J.  444. 
Eq.  599. 


§  317]  AGREEMENTS   FOR   CONVEYANCE.  343 


Alfred  Burwell, 


Agreement   to   Convey    [or,  Land  Con- 
tract.] 


with  ^      Bated  March  1,  1883. 

Charles  Dohhson.  Recorded  March  3, 1883. 

Book  210,  page  590. 

First  party,  on  payment  of  $500.00,  agrees  to  convey  to  second 
party  by  good  and  sufficient  warranty  deed,  the  following  de- 
scribed land  sititated  in  the  town  of  Mount  Pleasant,  Racine 
County,  Wis.,  described  as  [here  set  out  the  description]  free  from 
all  liens  and  incumbrances,  except  [here  set  out  incumbrance  re- 
citals, if  any]. 

Second  party,  in  consideration  of  the  foregoing,  agrees  to  pay 
sa/id  sum  of  $500.00  in  manner  following,  to  wit,  etc.;  [state  the 
terms  briefly]. 

Time  to  be  the  very  essence  of  the  contract. 

Further  mutually  agreed  that  said  second  party  shall  have  no 
right  to  the  possession  of  said  premises  as  purchaser,  until  after 
full  payment  of  purchase  money,  and  that  he  takes  same  as  tenant 
from  sadd  first  party  until  the  last  payment  has  been  made. 

Executed  by  both  parties  and  acknowledged  by  them  March'  1, 
1883. 

Instruments  of  this  kind  are  more  informal  than  deeds  and  fre- 
quently ai*e  not  acknowledged,  nor  does  it  seem  that  acknowl- 
edgment is  necessary.  Any  divergence  in  this  respect  should, 
however,  be  noted  in  the  abstract,  as: 

Witnessed  but  not  acknoivl edged. 

Where  the  agreement  has  been  consummated  by  deed,  and  par- 
ticularly where  the  transaction  is  ancient,  only  a  brief  allusion 
will  be  necessary  in  the  abstract.  In  such  cases  the  salient  facts 
may  be  shown  in  briefest  terms.    The  following  is  a  suggestion : 

William  Smith  ^      Agreement 

with  y     Dated,  etc. 

Thomas  Jones.  j      *  *  *  #  # 

For  conveyance  by  warranty  deed  of  the  North  East  quarter  of 
Section  10,  Town  39,  North,  Range  13,  East  of  the  Third  P.  M.,  on 
patjment  of  $2,000.00. 

§  317.  Assignment  of  the  Contract.  In  the  assignment  of  an 
executory  contract  for  the  sale  of  land,  there  is  no  implied  cove- 


344  ABSTRACTS   OF   TITLE.  [§  317 

nant,  on  the  part  of  the  assignor,  of  title  to  the  land  in  the  vendor ; 
all  that  can  be  implied  is  a  warranty  that  the  assignor  owned  the 
contract  and  had  the  right  to  assign  it,  and  that  the  signatures 
thereto  are  genuine.^'  Such  assignments  are  usually  very  brief 
and  informal,  and  consist  of  a  bare  recital  of  the  fact  of  assign- 
ment. "Whether  appended  to  the  original  or  made  by  a  separate 
instrument,  they  should  be  attended  by  the  same  solemnities  rela- 
tive to  execution,  etc.,  as  were  necessary  in  case  of  the  original, 
and  should  be  shown  in  the  abstract  as  a  separate  link  in  the  chain. 
The  effect  of  an  assignment  is  to  convey  to  the  assignee  all  the 
interest  of  the  assignor  therein,  and  it  entitles  him  to  demand  and 
receive  a  deed  of  conveyance  from  the  vendor  or  his  heirs  upon 
pa>Tnent  of  the  purchase  money  due  thereon.  He  takes  it  sub- 
ject to  all  the  crpiitios  existing  against  his  assignor,  and  is  entitled 
to  nil  the  beneficial  incidents.^* 

The  delivery  of  a  contract  for  the  purchase  of  land  by  the  pur- 
chaser to  one  to  indemnify  him  against  loss  by  becoming  a  guar- 
antor for  the  purchaser,  without  any  written  assignment  thereof, 
constitutes  an  equitable  mortgage,  and  a  subsequent  written  assign- 
ment to  another  who  has  no  interest  in  the  same,  and  where  no 
words  of  conveA'ance  are  used,  would  be  inoperative.^"  A  written 
assignment  of  a  deed  or  contract  for  the  conveyance  of  land  is  not 
necessary'  to  the  creation  of  an  equitable  mortgage,  and  the  only 
effect  of  such  written  assignment  is,  that  when  the  instrument 
and  a«^signment  are  recorded,  they  will  afford  constructive  notice 
of  the  mortgagee's  rights,  and  also  be  evidence  of  the  fact  of 
assignment  in  ease  of  a  dispute.^®  The  doctrine  of  equitable  mort- 
gages by  deposit  of  title  deeds  does  not  at  present  meet  with  much 
favor  in  this  country,  however,  and  strict  proof  of  notice  is  gen- 
erally required  from  the  equitable  mortgagee  to  bar  the  rights 
of  subsequent  purchasers  or  incumbrancers, ^'^  while  in  several 
States  the  doctrine  does  not  prevail  at  all.^' 

23  Thomas  v.  Bartow,  48  N.  Y.  26  Chase  v.  Ppnk,  21  N.  Y.  .'i84 ; 
133.  Jarvis     v.     Diitchor,     16     Wis.     .307: 

24  Tompkins  v.  Seely,  29  Barb.  Allen  v.  Wooflniff,  96  111.  11;  Hall 
212;  Cromwell  v.  Fire  Ins.  Co.,  44  v.  McDiiff,  24  Mo.  311;  Mounce  v. 
^'      V.     42-     Cornrrl's     Titles,     475;  Beyers,  16  Ga.  469. 

■Reeves    v.    Kimball,    40    N.    Y.    299;  27Bipknell  v,  Bicknell,  34  Vt.  498; 

Parmlv   v.   Buckley,    103   111.    115.  Story  Eq.  Jr.  §  1020. 

25  Allen  V.  Woodruff,  96  111.  11 ;  28  Bowers  v.  Oyster,  3  Pa.  239 ; 
and  see,  Story  Eq.  Jur.  §1020;  2  Van  Meter  v.  McFadden,  8  B.  Mon. 
Wash.  Eeal  Prop.  82;  Mandeville  v.  (Ky.)  435;  Strauss'  Appeal,  49 
Welch,  5  Wheat.  277.  Pa.  St.  358. 


§  318]  AGREEMENTS  FOB  CONVEYANCE.  345 

§  318.  Performance — Sufficiency  of  Deed  and  Title.  A  familiar 
form  of  expression  used  by  conveyancers  in  drafting  instruments 
of  the  character  under  consideration,  in  relation  to  tke  deed  to 
be  given,  is,  "good  and  sufficient,"  though  not  infrequently  the 
contract  expressly  calls  for  a  warranty  deed.  The  term  ' "  good  and 
suhicient  deed,"  etc.,  has  been  the  subject  of  much  litigation  and 
productive  oi  a  large  amount  of  judicial  reasoning,  both  as  re- 
gards the  form  ot  the  instrument  and  the  title  conveyed  thereby, 
in  this,  as  m  most  other  much  litigated  questions,  a  complete 
harmony  ot  opinion  has  not  prevailed,  but  it  would  seem  to  be  the 
preponderating  doctrine,  that  a  covenant  to  give  a  good  and  sui- 
iicient  conveyance  of  land  is  satisfied  by  a  quitciaun  deed,^^  yet 
with  respect  to  the  title,  such  a  conveyance  can  only  be  performed 
by  a  deed  which  conveys  the  entire  estate,^"  and  vests  in  the  pur- 
chaser an  indeteasible  title."*^  A  contract  to  execute  a  good  and 
sufticient  warranty  deed  entitles  the  purchaser  to  a  warranty  deed 
of  the  land  free  from  all  incumbrances.^^ 

in  every  contract  for  the  sale  of  lands,  whatever  may  be  the 
language  in  which  it  is  couched,  there  is  an  implied  undertaking 
to  make  a  marketable  title,  unless  such  an  obligation  is  expressly 
excluded  by  the  terms  of  the  agreement,^^  and,  in  the  absence  of 
any  stipulation  as  to  the  kind  of  conveyance,  the  presumption  is 
that  the  vendor  undertook  to  make  such  a  conveyance  as  will  ren- 
der the  sale  elfectual.^*  ISpeciai  attention  is  directed  to  these 
matters  in  this  connection,  from  the  fact  that  it  is  at  this  period  of 
the  transaction  that  an  attorney  is  usually  called  to  pass  upon  the 
merits  of  the  proftered  title.  Whatever  may  be  the  medium  of 
transfer,  a  searching  investigation  should  be  given  to  the  title, 
which,  if  perfect  in  the  person  proposiug  same,  renders  the  vehicle 
of  conveyance  of  miuor  importance  j  but  an  olfer  to  make  a  quit- 

29  Kyle    v.    Kavanagli,    103    Mass.  31  Delevan    v.    Duncan,    49    N.    Y. 

356;    Thayer  v.   Torrey,   37  N.  J.   L.  485;    Davis    v.    Henderson,    17     Wis. 

339;    Contra   Watkins   v.    Kogers,    2,1  iU5;     Parker    v.    Parmlee,    liU    John. 

Ark.    298.      That  parties   have    made  13U. 

a  written  agreement  for  a  sale,  with-  32  Davidson   v.    Van   Pelt,   15    Wis. 

out     providing     for     any     warranty,  341;     Buiwell     v.    Jackson,    5    Seld. 

indicates    that    they    did    not    intend  (N.  Y.)    536. 

there   should   be   any    warranty;    and  33  Holland  v.  Holmes,  14  Fla.  390; 

if   the    conveyance   made    is    only    of  Hill    v.     liessegien,     17     Barb.     162. 

the    right,    title    and   interest    of    the  Compare,   Johnston   v.   Mendenhall,   9 

vendor,  he  can  not  be  held  liable  for  W.  Va.  112. 

defects  of  title,  except  on  the  ground  34  Hoffman    v.    Felt,    39    Cal.    109; 

of    fraud    or    concealment:    Johnston  but  consult  Fitch  v.  Willard,  73  111. 

v.  Mendenhall,  9  W.  Va.  112.  92. 

SOTaft  V.  Keaael,  Wis.  273. 


r{46  ABSTRACTS   OF   TITLE.  [§  318 

claim  deed,  which  conveys  only  the  vendor's  interest,  is  not  a  com- 
pliance with  an  agreement  to  make  title  in  a  case  where  the  chain 
of  title  upon  the  public  records  is  defective  or  broken,  or  the  land 
is  burdened  with  liens  and  incumbrances.^^  In  executory  con- 
tracts the  jjurchaser  is  never  bound  to  accept  a  doubtful  title.^^ 

Whenever  the  contract  calls  for  a  specific  title  or  method  of 
conveyance,  the  vendor  must  convey  as  specified ;  ^"^  thus,  where  a 
purchaser  has  contracted  for  a  title  of  record,  he  can  not  be  com- 
pelled to  take  a  title  depending  upon  adverse  possession  under 
the  statute  of  limitatious,^^  although  it  may  be  perfectly  good.^® 
But  where  the  vendor  of  land  assumes  no  responsibility  as  to  his 
title,  and  is  to  make  only  a  quitclaim  or  special  warranty  deed, 
but  is  to  furnish  a  satisfactory  abstract  of  title,  the  purchaser, 
for  a  reasonable  objection  to  the  title,  may  elect  whether  he  will 
accept  a  conveyance  or  rescind  the  sale,  provided  such  election  is 
made  with  no  unnecessary  delay .*°  If  he  elects  to  take  it  under 
a  unilateral  contract,  any  delay  on  his  part  w^ill  be  regarded  with 
especial  strictness,  the  fact  of  objection  in  such  case  not  justifying 
great  delay  in  performance,  and  it  has  been  held,  under  similar 
circumstances,  that  if  other  written  evidences  furnished  in  con- 
nection with  the  abstract,  show  a  marketable  title,  this  will  be 
sutficient,  although  the  abstract  of  itself  does  not.*^ 

§  319.  Forfeited  Contracts.  Agreements  for  conveyance  which 
do  not  euutemplute  an  immediate  sale  are  mainly  resorted  to  by 
two  classes;  the  one,  where,  by  reason  of  financial  inability,  no 
immediate  consummation  of  the  contract  of  sale  can  be  effected; 
the  other,  where  parties  desire  to  control  the  disposition  of  prop- 
erty for  a  limited  time  while  awaiting  other  developments.  In 
each  case  forfeitures  often  occur,  sometimes  evidenced  by  fore- 
closure proceedings,  but  more  frequently  by  an  express  or  implied 
declaration  of  forfeiture. 

]\Iuch  stress  is  often  placed  by  counsel  upon  the  fact  of  unful- 
filled contracts  of  sale  appearing  in  the  chain  of  title,  and  objec- 
tions of  a  serious  nature  are  frequently  founded  upon  them,  yet, 
as  a  rule,  they  are  formidable  only  in  appearance.  Where  a  con- 
tract for  the  sale  of  land  provides  that  if  the  purchaser  fails  to 

86  Holland     v.     Holmes,      14     Fla.  38  Delevan     v.     Duncan,     4    N.     Y. 

390.  485;    Tomlin    v.    McChord,    5    Marsh. 

36  Delevan    v.    Duncan,    49    N.    Y.        (Ky.)    138. 

485;    J^oberts  v.    Bassett,   105    Mass.           39  Page  v.  Greely,  75  111.  400. 

407.  40  Fitch    V.    Willard,    73    111.    92. 

37  Scott     V.  Simpson,     11     Heisk.           41  Welch   v.   Dutton,   79   111.  465. 
(Tcnn.)    310. 


§  320]  AGREEMENTS   FOR   CONVEYANCE.  347 

perform  any  of  his  covenants  the  vendor  or  his  assigns  shall  have 
the  right  to  declare  the  contract  null  and  void,  a  subsequent  sale 
by  such  vendor  to  another  party  for  a  valuable  consideration, 
after  the  time  fixed  for  performance,  is,  in  effect,  a  declaration  of 
forfeiture  of  the  purchasers'  contract.*^ 

Subsequent  purchasers  of  land,  in  the  absence  of  express  notice 
of  latent  equities  in  others  than  their  grantors,  can  only  be 
affected  by  such  legal  consequences  as  may  be  fairly  drawn  from 
the  record  itself;  and  when  the  record  shows  that  the  claim  of  a 
prior  purchaser  has  been  cut  off  and  defeated  by  a  sale  or  fore- 
closure, or  by  a  forfeiture  of  his  contract,  such  subsequent  pur- 
chasers will  have  a  right  to  rely  on  what  is  thus  disclosed.*^  An 
unfulfilled  contract  of  recent  date,  however,  should  always  be 
closely  scrutinized  and  the  fact  of  forfeiture  clearly  established, 
for  it  must  be  remembered  that  a  vendor  in  such  a  contract  can 
do  no  act  in  derogation  of  his  vendee's  title  when  such  vendee  is 
not  in  default.  Therefore,  should  the  vendor  convey  to  others 
while  such  contract  is  still  subsisting,  all  persons  who  claim  any 
interest  in  the  land,  with  notice  of  the  contract,  will  be  held  to 
perform  such  contract  to  the  same  extent  that  the  original  vendor 
would  be  bound  if  he  had  retained  the  title.** 

§  320.  Bond  for  a  Deed.  Bonds  for  the  conveyance  of  land  or 
interests  therein,  though  formerly  much  in  vogue,  have  now  fallen 
into  disuse,  and  when  shown  are  usually  in  the  earlier  links  of  the 
chain.  As  in  the  case  of  land  contracts,  when  followed  by  deed 
only  a  brief  notice  is  required,  while  if  the  condition  remains  un- 
fulfilled a  greater  degree  of  detail  is  necessary.  The  usual  formal 
requisites  of  this  class  of  obligations  are  equally  necessary  to 
bonds  for  title,  and  in  addition,  as  it  provides  for  a  transfer  of 
land,  the  essentials  necessary  to  entitle  it  to  record  and  to  afford 
constructive  notice,  as  acknowledgment  and  the  like;  an  example 
is  here  given : 


James  Thompson 

to 
Thomas  Wilson. 


Bond  for  Deed. 
Bated  July  1,  1882. 
Recorded  July  3,  1882. 
Vol.  "B"  of  Deeds,  page  252. 
In  the  penalty  of  $1,000.00. 


42Streeper  v.  Williams,  48  Pa.  St.  44  Tate   v.   Pensaeola,   Etc.   Co.,   37 

450;    Grey    v.    Tubbs,   43    Cal.    364;        Fla.  439. 
Cummings  v.  Rogers,  36  Minn.  317. 

43  See  Warren  v.  Richmond,  53  111. 
54;   Warder  v.   Cornell,  105  lU!  169. 


348  ABSTRACTS   OP   TITLE.  [§  320 

Condition  for  the  conveyance,  hy  "good  and  sufficient"  deed, 
of  land  in  Kenosha  County,  Wis.,  descrihed  as  the  south  half  of 
the  sout'hcast  quarter  of  Section  ten,  Town  one  north,  Range 
twenty-three,  east  of  the  4th  principal  meridian,  on  payment  of 
$500.00. 

Acknowledged  July  1,  1882. 

Special  provisions,  if  material,  should  be  shown  as  they  occur. 
A  bond  to  convey  land  upon  payment  of  the  stipulated  price  is 
evidence  of  a  mutual  agreement  of  the  obligee  to  purchase  and 
of  the  obligor  to  sell.  The  agreement  of  one  party  is  a  considera- 
tion for  that  of  the  other,  and  it  is  immaterial  that  the  obligation 
of  the  one  party  is  secured  by  bond,  and  that  of  the  other  is  not 
thus  secured."  It  will  be  understood  that  the  foregoing  remarks 
have  reference  only  to  the  right  of  a  vendee  to  compel  perform- 
ance by  the  vendor.  If  relief  is  sought  against  the  vendee  then 
he  must  sign  the  instrument  before  he  can  be  charged. 

§  321.  Agreements  for  Conveyances  by  Will.  Agreements  to 
convey  need  not  provide  for  the  delivery  of  a  deed,  for  an  agree- 
ment to  devise  property  by  will  may  be  subjected  to  a  specific  per- 
formance by  a  court  of  equity,  after  the  death  of  the  granting 
party,  with  the  same  effect  as  a  contract  to  convey  while  living. 
It  has  been  said  by  Williamson,  C. :  "There  can  be  no  doubt  but 
that  a  person  may  make  a  valid  agreement,  binding  himself 
legally  to  make  a  particular  disposition  of  his  property  by  last  will 
and  testament.  The  law  permits  a  man  to  dispose  of  his  own 
property  at  his  pleasure ;  and  no  good  reason  can  be  assigned  why 
he  may  not  make  a  legal  agreement  to  dispose  of  his  property  to 
a  particular  individual,  or  for  a  particular  purpose,  as  well  by 
will  as  by  conveyance,  to  be  made  at  some  specified  future  period, 
or  upon  the  happening  of  some  future  specified  event.  It  may  be 
unwise  for  a  man  to  embaii'ass  himself  as  to  the  final  disposition  of 
his  property,  but  he  is  the  disposer  by  law  of  his  fortune,  and  the 
sole  and  best  judge  as  to  the  manner  and  time  of  disposing  of  it.  A 
court  of  equity  will  decree  the  specific  performance  of  such  an 
agreement  upon  the  recognized  principles  by  which  it  is  governed 
in  the  exercise  of  this  branch  of  its  jurisdiction."*^ 


46Ewin3     v.     Gordon,     49     N.     H.  46  Johnson  v.   Hubbel,  5  Am.  Law 

444.     The   rule  is   the   same  in   case  Eeg.    177;    Stephens    v.    Keynolds,    6 

of    agreements    to    convey   signed   by  N.    Y.    458;    Wright    v.    Tinsley,    30 

the  vendor  only.     See  Vassalt  v.  Ed-  Miss.    389;    Mundorf    v.    Howard,    4 

wards,  43  Cal.  458.  Md.  459. 


CHAPTER  XX. 

LEASES. 

§  322.     Nature  and  requisites.  §  325.     Implied  covenants. 

§  323.     Formal  parts.  §  326.     Agricultural   lands. 

§  324.     Covenants  and   conditions.  §  327.     Assignment  of  lease. 

§322.  Nature  and  Requisites.  A  lease  is  a  contract  for  the 
possession  and  profits  of  land  and  tenements  on  the  one  side, 
and  a  recompense  of  rent  or  other  income  on  the  other;  or  it  is  a 
conveyance  to  a  person  for  life  or  years,  or  at  will,  in  considera- 
tion of  such  rent.*  The  estate  or  interest  conveyed  by  a  lease  is 
personal  in  its  nature,  whatever  may  be  the  duration  of  the  term, 
and  falling  below  the  character  and  dignity  of  a  freehold,  it  is 
regarded  as  a  chattel  interest,  and  is  governed  and  descendible  in 
the  same  manner.^  When  made  in  writing,  as  it  generally  must  be 
if  the  term  exceeds  one  year  in  duration,  a  lease  is  usually 
mutually  signed  in  duplicate  and  interchangeably  delivered  by  the 
parties,*  but  if  only  signed  by  the  lessor,  its  acceptance  by  the 
lessee  raises  a  promise  on  his  part  to  pay  the  rent  reserved  and 
faithfully  observe  all  the  stipulations  and  conditions  which  the 
lease  shows  were  to  be  observed  or  performed  by  him.* 

Whether  an  instrument  shall  be  considered  a  lease,  or  only  an 
agreement  for  one,  depends  on  the  intention  of  the  parties,  as 
collected  from  the  whole  instrument,  and  the  law  will  rather  do 
violence  to  the  words  than  break  through  the  intent  of  the  parties 
by  construing  such  an  instrument  as  a  lease,  when  the  intent  was 
manifestly  otherwise.* 

The  proper  definition  of  a  lease  embraces  only  such  instruments 
of  conveyance  as  transfer  to  the  lessee  a  less  estate  than  is  pos- 
sessed by  the  lessor,  thus  leaving  a  reversion  in  him,^  and  this 

IJackson   v.   Harsen,   7   Cow.   326;  arc   regarded  as  original:    Dudley  v. 

2  Bl.   Com.  217.  Sumner,      5     Mass.     438;      Taylor's 

2  2    Kent    Com.    342;    Goodwin    v.  Landlord     and     Tenant,     106     (6th 

Goodwin,  33  Conn.  314.  Ed.). 

8  The    copy    delivered    to    the    ten-  4  Pike   v.   Brown,   7   Gush.    134. 

ant   is  called  the   original  lease,   the  •»  Jackson    v.    Delacroix,    2    Wend. 

one  to  the  landlord  the  counterpart,  433. 

Ibut   for    all    practical    purposes   both  6Willard's    Conveyancing,    425. 

349 


350  ABSTRACTS   OP   TITLE.  [§  322 

in  the  sense  in  which  the  teiin  is  now  employed,  yet  formerly  it 
was  not  uncommon  to  grant  land  in  fee,  reserving  an  annual  rent 
charge,  notwithstanding  there  was  no  reversion,  and  the  covenant 
to  pay  such  rent  ran  with  the  land,  as  well  as  the  condition  of 
forfeiture  and  re-entry  for  its  non-payment.'^ 

§  323.  Formal  Parts.  Where  a  lease  is  found  upon  the  records 
which  has  expired  by  its  own  limitation,  it  raises  a  vexed  question 
among  examiners  as  to  whether  it  should  be  shown  or  passed 
without  notice.  It  can  in  no  way  affect  the  title ;  it  is  not  a  charge 
or  incumbrance,  nor  is  it  even  a  cloud.  It  may  with  propriety  be 
disregarded  unless  followed  by  a  subsequent  renewal,  but  should 
the  examiner  deem  it  expedient  to  note  it,  as  being  included  in  and 
covered  by  his  certificate  of  search,  a  very  brief  statement  by  way 
of  appendix  would  seem  fully  sufficient.  When  for  a  short  or 
almost  expired  term,  being  a  charge  upon  the  fee,  it  may  be 
shown  briefly,  but  when  for  a  long  term  of  years  it  should  be 
shown  fully  and  succinctly.  When  for  ninety-nine  years,  or  re- 
newable forever,  it  has  much  of  the  dignity  and  many  of  the 
attributes  of  a  conveyance  of  the  fee  and  requires  corresponding 
treatment.  When  shown  fully,  the  examiner  will  observe  the 
names  of  parties  as  in  case  of  deeds ;  the  dates ;  the  description ; 
the  term;  the  rent  reserv^ed;  the  general  and  special  covenants; 
the  conditions  and  restrictions,  and  the  special  agreements,  if  any. 
The  execution  and  authentication  should  comply  with  the  statute. 

Whenever  a  lease  is  of  sufficient  importance  to  show  in  extenso 
the  entire  instrument  should  be  carefully  perused  and  the  cove- 
nants and  conditions  critically  observed.  The  aid  of  an  experi- 
enced conveyancer  is  frequently  dispensed  with  in  preparing  in- 
.stmments  of  this  character ;  printed  forms  are  generally  employed, 
and,  when  they  are  not  obtainable,  copies  are  made  from  books  of 
forms  or  from  old  instruments.  In  this  way  covenants  are  created 
without  being  well  understood,  and  which  often  astonish  the 
parties  to  be  bound  when  occasion  arises  which  calls  for  the  per- 
formance of  them. 

The  dates  are  important  in  leases,  much  more  so  than  in  abso- 
lute convej'ances,  and  frequently  arc  of  controlling  efficacy  in 
determining  the  duration  of  the  term.  The  words  of  limitation 
of  the  term  will  also  be  carefully  noted,  as  also  the  words  of  for- 
feiture and  ceaser.  The  proper  words  to  be  used  in  creating  a 
limitation   upon    a   term    gi-anted   are,   "while,"    "as   long   as," 

7  Van  Eensselaer  v.  Hays,  5  Smith,      Ed.    177;    Jackson    v.    Allen,    3    Cow. 
68;     2    Sugd.    Vend.    725,    Perkins'      220. 


§  323]  LEASES.  351 

' '  during, ' '  and  ' '  until. ' '  *  The  words  of  grant  are,  ' '  demise, 
lease  and  let,"  or  "to  farm  let,"  but  these  words,  as  in  case  of 
deeds,  have  lost  much  of  their  original  technical  efficacy,  and  any- 
other  words  which  show  the  intention  will  do  as  well.® 

The  matter  of  execution,  as  sealing,  acknowledgment,  etc.,  is 
statutory,  but  as  a  rule  neither  of  the  afore-mentioned  formalities 
are  necessary.    An  example  is  appended : 


Robert  M.  Johnson 

to  and  with 
Hiram  W.  Jamison 
Doc.     20,  140. 


Lease. 
Dated,  etc. 


First  party  leases,  demises  and  lets  to  second  party  the  follow- 
ing described  real  estate  in  Cook  County,  Ills.,  to  wit:  [describe 
the  property.] 

To  hold  for  the  term  of  ten  years  from  the  day  of  the  date 
hereof;  [or,  a  specific  date,  if  inserted],  at  the  annual  rental  of 
$500.00  payable  semi-annually. 

Said  second  party  covenants:  for  the  payment  of  the  rent  re- 
served; for  the  payment  of  all  taxes  and  assessments  levied  on 
said  premises  during  the  term  aforesaid;  against  waste,  against 
sub-leasing,  etc. 

Said  first  party  covenants:  for  quiet  enjoyme^nt;  for  the  renewal 
of  the  term  hereby  demised  at  the  expiration  thereof  for  the  same 
time  and  upon  the  same  terms  as  this  indenture,  etc. 

Provides,  that  in  case  said  second  party  shall  neglect,  or  fail  to 
perform  and  observe  any  or  either  of  before-mentioned  covenants 
on  his  part  to  be  performed,  the  term  hereby  demised  is  to  cease 
and  determine,  and  that  first  party  may  enter  and  repossess  said 
premises,  without  further  notice  or  demand  and  expel  said  second 
party  (and  those  claiming  under  him)  without  prejudice. 

Provides  further  that  in  case  the  premises  shall  be  destroyed 
by  fire  or  other  unavoidable  casualty,  that  the  term  hereby  de- 
mised shall  cease  ('or,  that  the  rent  be  suspended,  etc.). 

Signed  and  sealed  by  both  parties. 

Acknowledgment. 

In  many  instances  it  will  be  necessary  to  set  out  the  covenants 
and  conditions  with  greater  precision  than  in  the  example,  par- 

SVannatta  v.  Brewer,  32  N.  .T.  Eq.  Taylor's  Landlord  and  Tenant,  114 
268.  (6th   Ed.). 

OHallett    V.    Wylie,    3    Johns.    44; 


352  ABSTRACTS   OF   TITLE.  [§  323 

ticularly  iu  ca^es  of  ground  leases  for  long  terms  and  where  the 
land  demised  has  been  highly  improved  with  permanent  build- 
ings by  the  tenant.  In  caaes  of  leases  for  lives,  more  detail  will 
be  necessary  in  describing  the  term,  and  the  provisions  looking 
toward  forfeiture.  As  a  general  rule,  a  lease  of  land  for  any 
number  of  years  will  not  violate  the  statute  against  perpetuities,^® 
except  in  the  case  of  agricultural  lands. 

§  324.  Covenants  and  Conditions.  Owing  to  the  ignorance  gen- 
erally prevailing  of  the  legal  clfccts  of  covenants  in  leases  and 
other  instruments,  which  are  often  executed  without  any  particular 
inspection  or  knowledge  of  their  contents,  people  are  often  sur- 
prised into  contracts  which  neither  party  intended  when  the  instru- 
ment was  executed.^^  The  words  "yielding  and  paying,"  etc., 
constitute  a  covenant  for  the  payment  of  rent,^^  which  runs  with 
tlie  land,  and  formerly,  if  not  qualihed  by  any  exception  or  condi- 
tion, bound  the  tenant  to  pay  rent  during  the  continuance  of  the 
term,  notwithstanding  the  buildings  on  the  premises  were  destroyed 
by  hre  during  the  tenaucy.^^  Covenants  for  rebuilding,  repairing, 
etc.,  run  with  the  land  and  are  obligatory  upon  both  parties  and 
their  assigns,^*  according  as  either  of  the  pailies  are  bound.  The 
covenant  to  pay  for  any  buildings,  erected  by  the  tenant,  at  the 
expiration  of  the  term,  runs  with  the  land  and  inures  to  the 
beneht  of  the  assignee.^*  The  covenant  for  renewal  is  one  of  the 
most  important  to  be  noticed  by  the  examiner,  and  like  those  just 
mentioned  is  incident  to  the  land.^^  A  covenant  to  renew  implies 
the  same  term  and  rent,  but  not  the  same  covenants,^'''  and  is  sat- 
ished,  even  though  providing  for  renewal  under  the  same  cove- 
nants contained  in  the  original  lease,  by  a  renewal  omitting  the 
covenant  to  renew.^*  A  covenant  for  indefinite  renewals  at  the 
option  of  the  lessee  is,  in  effect,  the  creation  of  a  perpetuity,  and 

10  Ee  riubbell's  Trust,  135  Iowa  may  be  especially  enforced,  provided 
637,  113  N.  W.  512,  13  L.  E.  A.  (N.  the  application  b*e  made  within  a 
Sj    496.  reasonable   time   after   the   expiration 

11  Phillips  V.  Stevens,  16  Mass.  239.  of   the    former  lease,   and  the   owner 

12  De  Lancy  v.  Ganong,  5  Seld.  9.  of  the  reversion  or  fee  will  be  com- 

13  Hallett  V.  Wylie,  3  Johns.  44.  pelled     to      execute     a     new     lease. 

14  Allen  v.  Culver,  3  Denio,  284.  Banks   v.    Ilaskie,    45   Md.   209. 
l6Lametti     v.     Anderson,     6     Cow.  18  Carr   v.    Ellison,    20    Wend.    178. 

302;     Van    Eensselaer    v.    Pennimar,  A  covenant  to  renew  which  does  not 

6   Wend.   569.  state  the  terms  or  length  of  time  of 

Ifl  Sutherland  v.  Goodnow,   108  111.  such  renewal,  has  been  held  void  for 

528.  uncertainty:    Laird    v.   Boyle,   2   Wis. 

l^Butgera     v.     Hunter,     6     Johns.  431. 
Ch.   218.     The   covenant  for   renewal 


§  326]  LEASES.  353 

therefore  against  the  policy  of  the  law.^^  The  burden  of  the 
payment  of  taxes  and  assessments  is  frequently  assumed  by  the 
tenant,  particularly  in  long  terms,  but  whether  assumed  by  lessor 
or  lessee  it  runs  with  the  land,  and  binds  the  respective  assigns.^® 

The  covenants  of  leases  are  usually  protected  by  a  condition 
avoiding  the  estate  and  working  a  forfeiture  in  case  of  breach, 
and  this  condition,  which  is  of  the  essence  of  the  lease,  must  always 
be  noticed  at  such  length  as  its  importance  seems  to  demand. 

It  is  not  uncommon  for  the  landlord  to  give  the  tenant,  by  an 
agreement  in  his  lease,  an  option  to  purchase  the  demised  prem- 
ises, and  whenever  such  agreements  are  inserted  they  should  be 
displayed  in  the  abstract. 

§325.  Implied  Covenants.  It  is  a  fundamental  principle  that 
the  law  will  always  imply  covenants  against  paramount  title,  and 
against  such  acts  of  the  landlord  as  destroy  the  beneficial  enjoy- 
ment of  the  premises.^^ 

§  326.  Agricultural  Lands.  To  avoid  perpetuities,  as  well  as 
tlie  creation  of  large  manorial  estates,  a  majority  of  the  States 
have,  either  by  a  constitutional  provision  or  an  express  statutory 
enactment,  prohibited  the  lease  or  grant  of  agricultural  land  for  a 
longer  period  than  twelve  or  fifteen  years,  and  leases  made  in 
contravention  of  this  prohibition,  in  which  there  is  reserved  any 
rent  or  service  of  any  kind,  are  declared  to  be  void.  The  leases 
or  grants  contemplated  by  the  law,  are  such  as  are  held  by  the 
tenant  upon  a  reservation  of  an  annual  or  periodical  rent  or 
service,  to  be  paid  as  a  compensation  for  the  use  of  the  estate 
granted.  It  is  still  competent  to  make  a  grant  for  life,  or  lives,  upon 
a  good  consideration  to  be  paid  for  the  estate,  which  considera- 
tion may  be  payable  at  once,  or  by  installments,  or  in  services,  so 
that  it  be  not  by  way  of  rent.     To  bring  it  within  the  law  there 

19  Brush  V.  Beecher,  110  Mich.  Plater  v.  Cunningham,  21  Cal.  233. 
.^97;  Morrison  v.  Eossignol,  5  Cal.  This  results  from  the  principle  of 
64.  A  lease  renewable  forever  is  an  law,  that  every  grant  carries  with 
English  exotic  which  never  seems  it  an  implied  understanding  on  the 
to  have  thrived  in  our  soil.  In  part  of  the  grantor  that  the  grant 
most  of  the  States  such  leases  are  is  intended  to  be  beneficial,  and  that, 
invalid.  so    far    as    he    is    concerned,    he    will 

20  Post  V.  Kearny,  2  Comst.  394;  do  no  act  to  interrupt  the  free  and 
Oswald    V.    Gilfert,    11    Johns.    443.  peaceful     enjoyment     of     the     tliin^ 

21  Streeter  v.  Strceter,  43  111.  155 ;  granted.  See  Dexter  v.  Manley,  4 
Boreel    v.    Lawton,    90    N,    Y.    293;  Oush.    (Mass.)    24. 

Hamilton    v,    Wright,    28    Mo.    199; 
Warvelle  Abstracts — 23 


354  ABSTRtiCTS   OP   TITLE.  [§  32G 

must  be  a  reservation  of  rent  or  serviee.*^  This  may  seem  a  subtle 
(list  iuct ion,  but  it  is  one  -vvliich  the  courts  have  made  and  which 
they  strenuously  enforce.  A  reservation  is  defined  as  a  keeping 
aside,  or  providing,  as  when  a  man  lets,  or  parts  with  his  land,  but 
reserves,  or  i)rovides  himself  a  rent  or  income  out  of  it  for  his 
livelihood;  and  a  rent  is  said  to  be  a  sum  of  money,  or  other  con- 
sideration, issuing  yearly  out  of  lands  and  tenements.  It  must 
be  ])rofit,  but  it  is  not  necessary  that  it  should  be  money.  The 
profit  must  be  certain,  and  it  must  also  issue  yearly.^^ 

§  327.  Assignment  of  Lease.  To  constitute  an  assignment  of  a 
leasehuld  interest,  the  assignee  must  take  precisely  the  same  estate 
in  the  whole  or  in  a  part  of  the  leased  premises  which  his  assignor 
had  therein,  lie  must  not  only  take  for  the  whole  of  the  unex- 
pired term,  but  he  must  take  the  whole  estate,  or  in  other  words, 
the  whole  termj^*  fyi-  the  word  "term"  does  not  merely  signify 
the  time  specified  in  the  lease,  but  also  the  estate  and  interest  that 
passes  by  the  lease;  for  the  term  may  expire  during  the  continu- 
ance of  the  time,  as  by  surrender,  forfeiture,  and  the  like.^* 

The  grant  of  an  interest  which  may  possibly  endure  to  the  end 
of  the  term,  is  not  necessarily  a  grant  of  all  the  estate  in  the  term. 
Whether  the  conveyance  be  in  the  form  of  a  lease  or  an  assign- 
ment, if  it  provides  new  conditions  with  a  right  of  entry,  or  new 
causes  of  forfeiture  are  created,  then  the  tenant  holds  by  a  dif- 
ferent tenure  and  a  new  leasehold  interest  arises,  which  can  not 
be  treated  as  an  assignment  or  a  continuation  to  him  of  the  original 
term.  When  an  estate  is  conveyed  to  be  held  by  the  grantee  upon 
a  condition  subsequent,  there  is  left  in  the  grantor  a  contingent 
reversionary  interest ;  ^^  and  where  by  the  terms  of  an  instrument 
which  purports  to  be  an  under  lease,  there  is  left  in  the  lessor  a 
contingent  reversionary  interest,  to  be  availed  of  by  an  entry  for 
breach  of  condition,  which  restores  the  sub-lessor  to  his  former 
interest  in  the  premises,  the  sub-lessee  takes  an  inferior  and  differ- 
ent estate  from  that  which  he  would  acquire  by  an  assignment  of 
the  remainder  of  the  original  term;  that  is  to  say,  an  interest 
which  may  be  terminated  by  forfeiture,  on  new  and  independent 

22Parsell    v.    Stryker,    41    N.    Y.  is   an    assignee:    Kearney    v.    Post,    1 

480.  Sandf.   105. 

as  Stephens   v.    Reynolds,    6   N.    Y.  25  2  Black  Com.  144. 

458,  2  Blk.  Com.  41.  26  Austin     v.     Cambridgeport     Par- 

24  Van     Ransselaer     v.     Gallup,     5  ish,    21    Pick.    215;     Brattle    Square 

Denio,   454.      The   purchaser   under   a  Church  v.  Grant,  3   Gray  147. 
mortgage  of  all  the  estate  of  a  lessee. 


§  327]  ABSTRACTS   OP   TITLE.  355 

grounds,  long  before  the  expiration  of  the  original  term.  If  the 
smallest  reversionary  interest  is  retained,  the  tenant  takes  as 
sub-lessee,  and  not  as  assignee.^' 

27Dunlap  v.  Bullard,  131  Mass. 
161;  McNeil  v.  Kendall,  128  Mass. 
245. 


CHAPTER  XXI. 

MISCELLANEOUS    EVIDENCE    AFFECTING    TITLE. 

§  328.     General  remarks.  §  334.  Official  certificates. 

S  329.     Irregular   instruments.  §  335.  Incorporeal  hereditaments. 

§  330.     Municipal  ordinances.  §  336.  Easements  and  servitudes. 

§  331.     Executive     approval  of     or-       §  337.  Party  wall  agreements. 

dinances.  §  338.  Letters. 

S  332.     Operation    and    effect  of    or-       §  339.  Affidavits. 

dinances.  §  340.  Continued — General  requisites. 

5  333.     Municipal  resolution.  §  341.  Unrecorded  instruments. 

§  328.  General  Remarks.  In  this  chapter  it  is  proposed  briefly 
to  notice  a  variety  of  instruments  which  are  not  susceptible  of 
classification  in  other  divisions  of  the  work,  but  which  have  a 
direct  bearing  upon  the  question  of  title,  and  must  be  included 
in  all  properly  prepared  abstracts,  whenever  they  appear  upon 
the  records  during  the  period  covered  by  the  search.  Of  this 
nature  are  affidavits,  municipal  ordinances,  letters,  etc.,  all  of 
which  are  proper,  and,  under  certain  conditions,  competent  evi- 
dence, in  support  of  the  facts  so  presented. 

§  329.  Irregular  Instruments.  This  is  the  name  applied  by  ex- 
aminers, to  all  deeds  and  instruments  in  which  the  subject-matter 
is  not  sufficiently  identified  to  permit  them  to  be  posted  in  the  tract 
indices.  Tlioy  include  "blanket"'  conveyances,  that  is,  all  instru- 
ments of  conveyance  in  which  [he  property  is  mentioned  only  in 
<:ciici';il  loi-nis  and  not  specifically;  letters  of  attorney  giving  only 
a  general  power;  releases,  confirmations,  etc.,  which  describe  no 
property  but  allude  to  other  instruments  for  identification;  affi- 
davits of  facts  not  directly  connected  with  land,  but  which  inci- 
dentally affect  or  implicate  title;  and  all  other  instalments  and 
documents  which  do  not  upon  their  face  indicate  the  particular 
parcel  of  land  they  affect. 

In  compiling  the  abstract  these  matters  should  receive  careful 
attention,  and  not  only  should  all  independent  instruments  which 
generally  affect  the  title  be  shown  but  also  appendices  to  instru- 
ments conveying  other  lands,  where  such  appendices  have  any 

356 


§  330]  MISCELLANEOUS   EVIDENCE   ATFEOTINQ   TITLE.  357 

appreciable  bearing  upon  the  property  in  question.    The  following 
will  serve  to  illustrate: 

Appended  to  Document  347,614,  in  hook  1086,  page  631,  recorded 
Sept.  13,  1881,  is  the  following: 


Affidavit 

by 

Thos.  J.  Walsh. 


Subscribed  and  sworn  to  Oct.  23, 
1880. 

That  he  was  a  bachelor  until  July, 
1860. 


§330.  Municipal  Ordinances.  A  city  council  is  a  miniature 
legislature,  authorized  to  legislate  for  a  locality,  and  its  ordinances, 
within  the  power  intrusted,  have  all  the  force  of  laws  passed  by 
the  legislature.  It  is  restricted,  however,  to  such  matters  as  are 
not  at  variance  with  the  general  laws  of  the  State,  and  are  reason- 
able and  adapted  to,  or  proper  for,  the  purposes  of  the  corpora- 
tion. Ordinances  must  be  consistent  with  public  legislative  pol- 
icy, and  must  not  contravene  common  right.  These  are  general 
principles  universally  recognized.^ 

Without  entering  into  a  discussion  of  the  nature,  requisites  and 
validity  of  ordinances,  which  as  a  rule,  must  be  determined  by 
reference  to  the  organic  act  or  charter  of  the  municipality,  it  may 
be  stated  generally,  that  such  ordinances  must  be  adopted  by  the 
proper  body,  and  be  published  in  the  manner  provided  by  law,^ 
the  practical  operation  of  an  ordinance  dating  from  its  passage 
and  publication.  "When  so  passed  and  published  they  afford  con- 
structive notice  to  all  persons  bound  to  take  notice  of  them.* 

The  only  occasion  the  examiner  will  have  to  show  the  acts  of 
municipal  bodies,  will  be  in  relation  to  the  opening  or  vacating  of 
streets  and  alleys,  with  an  occasional  conveyance  of  municipal 
property,  which  should  be  prefaced  by  a  synopsis  of  the  ordinance 
or  resolution  authorizing  same.  Being  in  the  nature  of  public  laws 
no  record  is  required  in  the  registry  of  deeds,  though  this  may  be 
accomplished  by  the  individual,  and  recourse  must  usually  be 
had  to  the  corporate  records.  The  abstract  should  show :  the  dates 
respectively  of  passage  and  publication,  and,  when  recorded,  the 
date  of  record;  the  subject-matter,  briefly  stated;  and  the  attesta- 

ILong   V.    Shelby    County,    12    Re-  21  Dil.  Municipal  Corp.  376;   Bar- 
porter,    285;    Maxwell    v.    Jonesboro,  nett  v.  Newark,  28  111.  62;  Conboy  v. 
11   Heisk.    (Tenn.)    257;    Williams   v.  Iowa  City,  2  Iowa,  90. 
Au^sta,    4    Ga.    509;    Mount    Pleas-  8  Palmyra  v.  Morton,  25  Mo.  593; 
ant  V.  Breese,  11  Iowa,  399.  Buffalo  v.  Webster,  10  Wend.  99, 


358  ABSTRACTS   OF   TITLE.  [§  330 

tioii,  if  any  is  required.     The  following  will  more  fully  illustrate 
the  subject : 

]      Ordinance,  No.  1,000. 
^  ""'^^'^  I      Adopted  Sept.  6,  1873. 

m      1^-77  f    T^  f     Recorded  Sept.  15,  1873. 

The    \\Uage   of  Jefferson.  -n     i  ^    t    t  *  io 

^       J        "  j     Book  6  of  plats,  page  13. 

Recites,  that  whereas,  a  petition  has  been  duly  filed  with  the 
Board  of  Trustees  of  the  Village  of  Jefferson,  signed  hy  Thos. 
^yihon  and  Lillie  M.  C.  Wilson,  representing  that  they  are  the 
owners  of  Blocks  76  and  77  in  Norwood  Park,  and  praying  sand 
hoard  to  order  a  vacation  of  all  that  part  of  Washington  Street 
lying  hetween  said  Blocks,  commencing  at  Indiana  Street  and  run- 
ning to  Eastern  Avenu£. 

And  whereas,  satisfactory  evidence  having  heen  filed  hy  said 
petitioners  of  due  notice  of  said  application,  and  no  objections 
appearing,  therefore  it  is, 

Ordained  by  the  President  and  Board  of  Trustees  of  the  Village 
of  Jefferson,  that  all  that  part  of  Washington  Street,  in  Norwood 
Park,  which  lies  between  Blocks  76  and  77,  beginning  on  Indiana 
Street  and  running  through  to  Eastern  Avenue,  be  and  same  hereby 
is  vacated. 

Published  Sept.  7,  1873. 
Note. — Appended  to  the  record  of  the  foregoing  is  a  certificate  hy 
S.  M.  Davis,  '* Village  Clerk,"  that  same  is  a  true  copy  of 
the  original  ordinance. 

Not  infrequently  a  descriptive  note  setting  forth  the  material 
facts  will  be  sufficient  to  impart  all  necessary  information.  "WTien- 
ever  this  method  can  be  advantageously  .employed  its  use  is  recom- 
mended, in  order  that  the  abstract  may  not  be  burdened  by  un- 
important details.  This  plan  will  be  found  to  produce  eminently 
satisfactory  results  in  cases  where  certain  acts  are  required  to 
follow  the  ordinance  before  it  becomes  effective,  and  in  such  cases 
a  full  resume  of  the  supplementary  acts  should  be  embodied  in  the 
note.    The  following  example  will  more  fully  explain  the  method: 

Note. — From  document  No.  2708  of  the  municipal  year  1894,  of 
the  files  of  the  proceedings  of  the  Common  Council  of  the 
City  of  Chicago,  on  file  in  the  office  of  the  City  Clerk  of  said 
city,  it  appears  that  an  ordinance  ivas  passed  by  said  Coun- 
cil on  May  12,  1895,  for  the  vacation  of  the  East  135  feet 
of  alley  in  Block  6,  Jones*  Subdivision  of  the  Northeast 
quarter  of  Section  7,  Town.  39  North,  Range  14  East  of 


§  330]  MISCELLANEOUS   EVIDENCE   AFFECTING   TITLE.  359 

the  3d  Principal  Meridian,  'but  with  a  proviso  that  same 
should  not  take  effect  until  a  new  alley  18  feet  in  width 
should  have  been  opened  from  North  to  South  through  the 
south  170  feet  of  said  Block,  the  East  line  thereof  to  be  135 
feet  West  of  Blank  Street,  in  acordance  with  m^ap  attached 
to  said  ordinance;  that  said  alley  should  be  opened  and  plat 
of  same  placed  of  record  within  30  days  from  passage  of 
ordinance,  otherwise  same  to  be  of  no  effect. 

The  new  alley  referred  to  in  the  foregoing  note  would  properly 
be  shown  as  a  subdivision  of  the  block  in  question  and  the  minutes 
of  survey  and  plat  would  immediately  follow. 

It  will  often  happen  that  it  may  be  deemed  unnecessary  or  in- 
expedient to  set  forth  the  terms  of  an  ordinance,  or  the  examiner 
may  be  directed  to  show  same  briefly  with  a  reference  to  the  record 
for  particulars.  Thus,  take  the  case  of  a  transfer  of  territory  from 
one  municipality  to  another.  In  such  event  the  action  of  both 
municipalities  should  be  shown,  yet  this  may  be  accomplished 
briefly,  in  most  cases,  by  simple  note,  as  for  example : 

Note. — There  was  recorded  on  April  22,  1887,  in  Book  2047  at 
page  206,  as  Doc.  819,864,  an  ordinance  for  the  annexa- 
tion of  the  territory  of  the  Village  of  Jefferson,  known  as 
Section  36,  Town.  40  North,  Range  13  East  of  the  3d  Prin- 
cipal Meridian,  to  the  City  of  Chicago.  Approved  and  rati- 
fied at  the  general  election  held  Tuesday,  April  1,  1887. 

Also,  Recorded  May  25,  1887,  as  Doc.  833,477,  in  Book 
2047  at  page  388,  is  an  ordinance  for  the  annexation  to  the 
City  of  Chicago  of  the  territory  embraced  within  the  limits 
of  Section  36,  Town.  40  North,  Range  13  East  of  the  3d 
Principal  Meridian,  with  the  map  of  said  annexed  territory 
attached. 

For  particulars  reference  is  made  to  the  records. 

Where  the  event  is  ancient  and  no  questions  have  been  raised 
respecting  it,  or  where  all  questions  growing  out  of  it  are  settled, 
this  brief  mention  will  be  sufficient  to  impart  all  the  information 
necessary.  On  the  other  hand,  if  the  event  is  recent  a  more  ample 
exhibition  of  the  instruments  should,  perhaps,  be  made.  Matters 
of  this  kind,  however,  do  not  reach  the  title  to  the  land  and  their 
significance,  at  best,  is  only  political.  The  principal  object  of 
their  insertion  in  the  abstract  is  to  appraise  the  person  perusing 
it  of  the  proper  location  of  the  property. 


^60  AbSTKACTS  OF   TITLE.  I  §  3.-51 

§331.  Executive  Approval  of  Ordinances,  in  many  cases  tlie 
biguature  or  expressed  approval  oi  tlie  Mayor,  or  some  correspond- 
ing oliicer,  is  required  to  give  validity  to  an  ordinance,  and  when 
the  submission  thereof  to  the  executive  of  the  municipality  is  made 
necessary  by  charter  or  general  laws,  a  noncompliance  will  be 
fatal  to  the  ordinance.*  In  such  cases  the  fact  of  submission  and 
approval  shoidd  be  noted  as  a  material  part  of  the  abstract  of  the 
ordinance. 

§332.  Operation  and  Effect  of  Ordinances.  It  does  not  seem 
that  a  municipal  corporation,  more  than  an  individual,  can  convey 
the  title  to  real  estate  in  any  other  manner  than  by  a  duly  exe- 
cuted deed,^  and  where  a  conveyance  has  been  attempted  by  ordi- 
nance no  title  has  been  held  to  pass,  while  such  an  ordinance  has 
further  been  held  to  be  so  defective  as  a  conveyance  as  not  to  give 
color  of  title  in  support  of  an  adverse  possession.**  A  release  of 
a  right  in  real  property,  by  ordinance  and  not  by  deed,  will,  it 
seems,  be  enforced  in  equity,  when  within  the  scope  of  the  cor- 
porate power,  and  upon  consideration,^  while  the  legal  elfect  of 
a  vacation  of  a  public  street  or  avenue,  is  to  revest  the  title  of  the 
land  embraced  within  its  limits,  in  the  original  owner  or  person 
who  dedicated  same.* 

§  333.  Municipal  Resolutions.  A  resolution  is  an  order  of  the 
council  or  governing  board,  of  a  special  and  temporary  character,' 
but,  as  a  general  rule,  has  the  same  effect  as  an  ordinance,  as  both 
are  legislative  acts.^'*  Where  any  matter  is  committed  to  the 
decision  of  the  council  by  the  charter,  which  is  silent  as  to  the 
mode,  the  decision  may  be  evidenced  by  a  resolution,  and  need 
not  necessarily  be  by  an  ordinance,"  hence  it  is  customary  in 
sales  of  the  municipal  real  estate,  to  authorize  the  sale  and  transfer 
of  same  by  a  resolution  which  also  directs  the  method  of  conveyance 
and  nominates  the  persons  who  are  to  execute  the  deed.^'* 

4  Babbidge  v.  Astoria,  25  Oreg.  417.  lO  Sower    v.    Philadelphia,    35    Pa. 

SDilL  Mun.  Corp.   §  451,  and  see,  St.   231;    Gas  Co.    v.   San  Francisco, 

Cofran  v.  Cofran,  5  N.  H.  458;  Ang.  6  Cal.  190. 

&  Ames  Corp.  §  193.  11  State    v.    Jersey    City,    3    Dutch, 

6  Beaufort  v.  Duncan,    1   Jones   L.  (N.  J.)   493. 

(N.  C.)  239.  12  If  the  charter  or  constituent  act 

7  Grant  v.  Davenport,  18  la.  179.  of   the  corporation  prescribes  a  par- 

8  Hyde  Park  v.  Borden,  94  111.  26;  ticular  mode  in  which  the  corporate 
Gebhart  v.  Eeeves,  75  lU.  301.  property    shall    be   disposed   of,    that 

OBlanchard  v.  Bissell,  11  Ohio  St.  mode  must  be  pursued:  2  Dill,  on 
86.  Mun.  Corp.  §  447,  and  see  McCracken 


§  334]  MISCELLANEOUS   EVIDENCE   AFFECTING   TITLE.  361 

It  would  seem  to  be  the  prevailing  doctrine  that  a  municipal 
conveyance  of  real  property  which  upon  its  face  is  regular,  car- 
ries with  it  the  presumption  of  a  due  and  proper  execution  in 
pursuance  of  law;i3  "hence,"  observes  Mr.  Dillon,  "it  is  unnec- 
essary for  the  grantee  or  party  claiming  under  it  to  produce  the 
special  resolution  or  ordinance  authorizing  its  execution. ' '  ^*  This 
may  be  true  for  the  ordinary  purposes  of  conveyancing,  but  can  not 
be  regarded  as  a  safe  rule  in  the  preparation  of  an  abstract,  which 
should  not  only  disclose  sufficient  of  the  deed  to  show  a  regular 
execution  upon  its  face,  but  also  the  authority  in  pursuance  of 
which  it  was  made,  that  counsel  may  know  from  inspection  and 
comparison  that  it  was  duly  executed,^^  it  being  the  duty  of  coun- 
sel, so  far  as  may  be,  to  reduce  presumptions  to  certainties,  and 
whenever  an  abstract  is  presented,  showing  a  municipal  deed 
but  no  order  or  resolution  in  support  of  it,  a  requisition  should 
be  made  for  the  evidence  of  the  authority  under  which  it  was 
executed.  In  actions  for  the  trial  of  disputed  land  titles,  where  a 
deed  relied  upon  is  the  act  of  a  municipal  corporation  the  author- 
ity for  its  execution  must  generally  be  put  in  evidence,*^  and  it 
would  seem  that  counsel  examining  title  should  insist  upon  the 
same  proof. 

§  334.  OflBcial  Certificates.  Certificates  of  officers  having  the 
legal  custody  or  supervision  of  records,  etc.,  as  well  as  of  minis- 
terial officers  in  the  performance  of  some  legal  duty,  are  of  fre- 
quent occurrence.  Usually  they  are  appended  to  some  kind  of 
documentary  evidence  to  which  they  have  special  relation,  but 
they  may  be  used  as  affirmative  and  independent  proof  of  matters 
within  the  certifying  officer's  jurisdiction.  Instances  are  afforded 
by  the  certificates  of  levy,  attachment,  etc.,  made  by  officers  execut- 
ing the  process  of  courts  and  which  afford  internal  evidence  of 
the  matters  therein  recited. 

Aside  from  the  certificates  of  officers,  and  others,  reciting  their 
own  acts  in  connection  with  some  particular  proceeding  in  the 

V.  San  Francisco,  16  Cal.  591;  Grojan  Flint  v.  Clinton  County,  12  N.  IT.  43. 

V.  San  Francisco,  18  Cal.  590,  where  See  Hart  v.  Stone,  30  Conn.  94. 

it    was    held    that    where    municipal  14  Dill.  Mun.  Corp.  §  450. 

oflBcers,  under  the  authority  of  a  void  16  Conveyances  of  real  property  by 

ordinance,  had  made  sales  of  corpo-  the  oflicers  of  a  municipal  corporation 

rate  real  estate,  no  title  passed,   the  must  he  made  by  virtue  of  a  special 

ordinance  and  sales  not  having  been  authority    for   that   purpose:    Merrill 

in    conformity    to    the    charter    which  v.  Burbank,  23  Me.  538. 

prescribed  a  rule  for  such  cases.  16  Ward    v.    Lumber    Co.,    70    Wis. 

18  Jamison  v.  Fopiana,  43  Mo.  565 ;  445. 


362  ABSTRACTS   OF   TITLE.  [§  334 

lino  of  their  official  duty,  there  is  a  class  of  official  custodians 
who  certify  from  the  records,  books,  files,  etc.,  committed  to  their 
care,  and  to  whose  certificates,  under  their  official  seal,  if  they 
have  any,  the  statute  in  some  cases  and  comity  in  othei-s,  attaches 
a  certain  dcgrree  of  evidentiary  value. 

When  a  public  officer  is  required  or  nulhorized  by  law  to  make 
a  certificate  or  affidavit,  touching  an  act  performed  by  him,  or  to 
a  fact  ascertained  by  him  in  the  course  of  his  official  duty,  and  to 
file  or  deposit  it  in  a  public  office,  such  certificate  or  affidavit  when 
so  filed  or  deposited  is  received  as  presumptive  evidence  of  the 
facts  therein  stated,  unless  its  effect  is  declared  by  some  special 
provision  of  law.  Under  this  head  come  certificates  of  sale  by 
masters  in  chancery  and  of  levy  and  attachment  by  sheriffs,  ex- 
amples of  which  will  be  found  further  on. 

Certificates  annexed  to  other  documents  for  the  purpose  of 
proof  or  verification  do  not,  as  a  rule,  require  nor  should  they 
receive  extended  notice,  but  when  standing  alone,  and  as  affirma- 
tive evidence  of  some  particular  fact,  they  acquire  a  certain 
dignity  that  calls  for  commensurate  treatment.  When  these  cer- 
tificates, for  instance,  allude  to  facts  which  appear  from  the  books, 
files  and  records  of  the  officers  of  State  in  regard  to  the  transfer 
of  land  by  or  to  the  government,  Federal  or  State,  or  by  the  State 
to  individuals,  the  original  evidence  of  which  is  not  accessible,  or 
has  been  destroyed  or  lost,  they  become  of  the  highest  importance 
and  should  be  shown  in  detail.     As,  per  example: 


Certificate 
by 
Ernst    G.    Timme,   Sec- 
retary   of    State,    of 
the  State  of  Wiscon- 
sin. 


Proof  of  Conveyance. 

Dated,  etc. 

•  *  * 


Said  Secretary  certifies,  that  from 
the  hooks,  files  and  records  of  the  of- 
fice of  Secretary  of  State,  it  appears 
that  on  the  10th  day  of  June,  1850,  the  following  described  real 
estate,  situated  in  the  State  of  Wisconsin,  viz.:  [set  out  descrip- 
tion] was  duly  transferred  by  the  United  States  to  the  State  of 
Wisconsin,  and  that  on  the  15th  day  of  Jidy,  1852,  the  above  de- 
scribed real  estate  was  duly  transferred  by  the  State  of  Wisconsin 
to  William  Jones. 

Signed  by  said  Secretary  and  the  great  (or  lesser)  seal  of  the 
State  of  Wisconsin  affixed. 

Where  certificates  are  appendant  merely,  the  degree  of  notice 
must  be  determined  by  the  character  of  the  principal  matter; 


§  336]  MISCELLANEOUS   EVIDENCE   AFFECTING   TITLE.  363 

as,  if  in  the  foregoing  case  a  transcript  of  books,  files,  etc.,  had 
been  made,  the  certificate  would  simply  have  been  by  way  of  veri- 
fication, and  the  examiner  might  have  shown  this  by  a  formal 
abstract  of  the  instrument  as  above,  or  he  might  with  equal  pro- 
priety mention  it  in  this  manner : 

Certificate  by  Ernst  G.  Timme,  Secretary  of  State,  that  the 
"annexed  and  foregoing"  is  a  true  and  correct  transcript  of  all 
hooks,  files,  records,  certificates  and  other  written  or  documentary 
evidence  of  title,  on  file  or  of  record  in  his  office,  relating  to  or  ap- 
pertaining to  the  title  to  the  lands  described  in  the  foregoing 
transcript,  and  of  the  whole  thereof,  appended. 

§  335.  Incorporeal  Hereditaments.  In  an  Eliglish  work  on  titles 
this  subject  would  occupy  no  inconsiderable  space,  while  in  the 
compilation  and  examination  of  English  abstracts  it  plays  a  con- 
spicuous part,  yet  in  the  United  States  the  term  is  seldom  used, 
while  the  number  of  strictly  incorporeal  hereditaments  is  very 
small.^'  In  this  country  they  are  usually  such  things  as  come 
within  the  definitions  and  general  doctrines  of  easements  and  servi- 
tudes. 

§336.  Easements  and  Servitudes.  An  easement  is  technically 
understood  to  be  raised  or  created  by  a  grant,  but  may  be  re- 
served in  a  conveyance  as  effectually  as  by  a  grant  by  deed.  Sep- 
arate instruments  are  rarely  employed  to  create  easements,  but  oc- 
casionally grants  of  rights  of  way  will  be  found  as  well  as  instru- 
ments granting  riparian  rights,  and  in  all  cases,  where  such  instru- 
ments are  matters  of  record,  purchasers  of  the  land  affected  thereby 
will  take  the  premises  subject  to  whatever  rights  they  may  confer 
upon  others  and  burdened  with  the  stipulated  service,^®  Where  an 
easement  is  appurtenant  or  appendant  to  an  estate  in  fee  in  lands, 
or  in  gross  to  the  person  of  the  grantee  for  life  or  for  years,  it  is 
incapable  of  alienation  or  conveyance  in  fee.^^  "When  in  gross,  it 
is  purely  personal  to  the  holder,  and  can  not  be  assigned,  nor  will 
it  pass  by  descent ;  ^^  when  appurtenant,  it  is  attached  to  the  land 

17  The    principal    incorporeal    here-  18  Turpin  v.  E.  E.  Co.,  105  111.  11. 

ditaments   according   to   the    common  18  Wash.    Easements,   10 ;    Kcelle   v. 

law;   are:   Advowsons  and  next  pres-       Knecht,  99  III.  496. 
entations,    tithes,   manors,    franchises,  20  Smiles  v.  Hastings,  22  N.  Y.  217; 

offices,   commons,    rights    of    way,    of       Ka'lle  v.  Knecht,  99  111.  496. 
light,  wood,  water,   rents  and   annui- 
ties: Lee  on  Abstracts,  *117;  2  Black, 
Com.  21. 


MG4  ABSTRACTS   OF   TITLE.  [§  33G 

US  an  iiu-ident  and  passes  with  it,  whether  the  land  be  conveyed 
lor  a  term  of  years,  for  life,  or  in  fee.^^  Being  incident  to  the 
laud,  it  can  not  be  separated  iTom  or  transferred  independent  of 
tile  land  to  whieh  it  inheres. ^^  Where  an  easement  is  created  by 
a  separate  instrument,  as  a  grant  of  a  right  of  way,  the  essential 
terms  should  be  fully  stated  in  the  abstract  and,  for  this  purpose, 
the  better  way  is  to  employ  the  exact  language  of  the  deed. 

§337.  Paxty  Wall  Agreements.  In  populous  localities  party 
wall  agreements  are  of  frequent  occurrence,  and,  though  not  tech- 
nically conveyances  of  land,  their  legal  effect  is  to  give  to  each  of 
the  parties  an.  easement  on  the  other's  land  which  becomes  appur- 
tenant to  their  several  estates  and  passes  to  their  respective  as- 
signees by  any  mode  of  conveyance  that  may  be  effectual  to  trans- 
fer the  land  itself.  While  the  authorities  are  not  altogether  har- 
monious with  respect  to  the  legal  effect  of  covenants  and  agree- 
ments providing  for  the  construction  of  party  walls  between  ad- 
jacent proprietors,  the  decided  weight  of  authority  fully  estab- 
lishes the  propositions  above  stated,  and  an  agreement  under  the 
hands  and  seals  of  the  parties,  containing  mutual  covenants  and 
stipulations  made  binding  on  their  respective  heirs  and  assigns, 
will,  when  duly  delivered  and  acted  upon,  create  cross-easements 
in  the  respective  owners  of  the  adjacent  lots  with  which  the  cove- 
nants in  the  agreement  will  run,  so  as  to  bind  all  persons  succeed- 
ing to  the  estates  to  which  such  easements  are  appurtenant.^'  Pur- 
chasers from  such  parties  take  with  constructive,  if  not  actual, 
notice  of  the  agreement,  and  are  presumed  to  have  assumed  the 
burdens  as  well  as  the  benefits  which  are  incident  to  it.^*  "We  con- 
cede," says  Mulkey,  J.,  "the  general  doctrine,  that  where  the  rela- 
tion of  landlord  and  tenant  does  not  exist,  only  such  covenants  as 
are  beneficial  to  the  estate  will  run  with  the  land ;  but  we  do  not 
regard   the  doctrine  as  applicable  to  cases  where  adjacent  pro- 

21  See      ' '  Easements      and      Servi-  23  Hart   v.    Lyon,    90    N.    Y.    663 
tudes,"    supra,    §25.  Thompson    v.    Curtis,   28    Iowa,   229 

22  Wash.  Easements,  10  Koelle  v.  Standish  v,  Lawrence,  111  Mass.  Ill 
Knecht,  99  111.  496.  "They  are  in  Ferguson  v.  Worrall,  125  Ky.  618, 
the  nature  of  covenants  running  with  101  S.  W,  966,  9  L.  R.  A.  (N.  S.) 
the  land,"  says  the  court  in  Garrison  1261. 

V.  Rudd,  19  111.  558,  "and  like  them,  24 Roche    v.    Ullman,    104    111.    11; 

must  respect  the  thing  granted  or  de-  Main  v.  Cumston,  98  Mass.  317;  Dor- 

mised,  and  must  concern  the  land  or  sey  v,  R.  R,  Co.,  58  111.  65;   Rindge 

estate  conveyed.    They  pass  by  a  con-  v.   Baker,   57   N.   Y.    209;    Rogers   v. 

veyance  of  the  land,  under  the  term  Sinshcimer,    50    N.    Y.    646;    Hart   v. 

'appurtenances,'    without    being    ex-  Lyon,   90    N.    Y.    663;    Thompson    v. 

pressly  named."  Curtis,  28  Iowa,  229. 


§  338]  MISCELLANEOUS   EVIDENCE   AFFECTING   TITLE.  365 

prietors  have  so  contracted  as  to  create  mutual  easements  upon 
each  other 's  estates,  and  entered  into  covenants  with  respect  to  the 
same.  The  new  relation  thus  created  being  of  an  intimate  charac- 
ter, involving  reciprocal  duties  with  respect  to  each  other's  estates, 
may  be  regarded  as  an  equivalent  for  the  absence  of  tenure,  so  as 
to  give  effect  to  all  covenants  without  regard  to  whether  they  are 
beneficial  or  onerous.  "^5  The  abstract  should  disclose  all  the  ma- 
terial facts.    An  example  is  appended : 


Hiram  Thompson 

with 

Jared  B.  Lake. 


Party  Wall  Agreement. 

Dated,  etc. 

****** 


Recites,  that  first  party  is  the 
owner  of  the  following  described  land  [describing  same]  and  that 
second  party  is  the  owner  of  certain  land  adjoining  same  described 
as  [describing  same]  and  that  said  first  party  proposes  to  erect  on 
his  said  land  a  brick  building,  and  is  desirous  of  having  the  wall 
between  the  two  above  described  lots  built  one-half  on  each  of 
said  lots  for  their  mufuaJ  benefit,  and  that  second  party  has  as- 
sented to  same,  on  condition  that  he  shall  have  the  right  of  using 
the  said  wall  as  hereinafter  expressed. 

And  said  parties  covenant  and  agree  to  and  with  each  other  as 
follows  : 

Said  second  party  agrees  that  if  first  party  shall  build  at  any 
time  a  partition  wall,  he  may  erect  and  maintain  one-half  of  same 
on  his,  second  party's  land  [state  conditions  if  any]  and  may  enter 
on  same  with  workynen  and  materials;  and  further  agrees  that 
whenever  he  shall  make  use  of  same,  he,  or  his  heirs  and  assigns, 
will  pay  to  said  first  party  one-half  of  the  whole  cost  of  said  parti- 
tion wall. 

Said  first  party  agrees  that  second  party,  his  heirs  and  assigns, 
may  use  said  partition  wall  for  the  benefit  of  any  building  he  may 
hereafter  erect  or  place  on  his  said  land,  provided  he  does  not  cut 
into  said  wall  beyond  his  oivn  half  thereof,  and  pays  the  price 
stipulated  above. 

Signed  by  both  parties,  and  acknowledged  by  them  August  1, 
1879. 

§  338.  Letters.  For  a  large  variety  of  matters  relating  to  in- 
terests in  land,  and  sales  and  conveyances  of  such  interests,  which 
by  law  are  not  required  to  be  under  seal  or  attested  by  any  solem- 
nity, epistolary  correspondence,  notes  and  memoranda,  are  com- 

86Eoche  v.  Ullman,  104  111.  11. 


;IGG  ABSTRACTS   OP   TITLE.  [§  338 

peteiit  ovidence.  This  is  particularly  the  case  in  regard  to  trusts, 
agreements  and  conditions  of  sale,  and  sometimes  in  supplying 
missing  information  relative  to  descents,  etc.  Hence,  it  is  not  un- 
common to  find  letters  of  record  relating  to  or  concerning  inter- 
ests in  land.  A  contract  for  the  sale  of  land  made  by  letter  cor- 
respondence between  the  parties  is  valid  and  will  be  enforced,  if 
the  consideration  to  be  paiil,  and  the  time  of  payment,  and  descrip- 
tion of  the  property  appear  sufficiently  certain  to  enable  a  court  to 
make  a  decree.^^  Where  a  person  acquires  title  to  land  in  trust 
for  another,  and  writes  him  a  letter  showing  clearly  that  he  holds 
the  same  in  trust,  this  will  be  sufficient  to  manifest  the  trust  as  re- 
quired by  the  statute  of  frauds.^''^  The  abstract  of  a  letter  consists 
of  little  else  than  its  recitals.    The  following  is  a  suggestion : 

Thomas  Jones  ^     Letter. 

to  y    Dated,  etc. 

William  Smith. 

States,  that  the  writer  is  the  person  named  as  grantor  in  a  deed 
of  conveyance  of  [here  set  out  descriptions  of  land  and  deed  as 
found  in  the  letter].  That  he  never  resided  in  the  State  of  Illinois, 
a7id  that  he  is  not  the  person  named  Thomas  Jones  against  whom 
a  judgment  for  $5,000.00  was  recovered  in  the  Circuit  Court  of 
Cook  County,  111.,  at  the  suit  of  Henry  Jackson. 

§  339.  Affidavits.  In  abstracting  the  proceedings  of  courts,  in 
matters  relating  to  title,  affidavits  will  occasionally  be  met  with, 
but  as  a  rule  they  are  of  such  a  nature  that  their  contents  are 
immaterial  to  the  examination,  and  they  may  be  disposed  of  in  a 
single  line  and  frequently  passed  without  notice.  There  is,  how- 
ever, another  class  of  affidavits,  resorted  to  by  conveyancers  under 
a  choice  of  difficulties,  which  frequently  figure  on  the  records  and 
in  the  abstract.  These  are  the  ex  parte  sworn  statements  of  indi- 
viduals respecting  some  question  raised  by  the  examination,  usually 
relating  to  deaths,  marriages,  births,  etc.,  concerning  which  no 
other  or  better  evidence  can  be  found.  Family  records  are  not  uni- 
versal, nor  even  where,  as  is  the  custom  of  many  of  the  States,  a 
record  of  births,  deaths  and  marriages  is  kept  by  proper  officers, 
can  the  requisite  information  be  always  obtained.  When  such  is 
the  case  resort  must  be  had  to  the  next  best  and  most  available  tes- 
timony, which  is  usually  supplied  by  the  affidavit  of  some  person 

WNeufville  v.  Stewart,  1  Hill,  166;  27  Moore  v.  Pickett,  62  111.  158. 

Firth  V.  Lawrence,  1  Paige,  434. 


§  339]  MISCELLANEOUS   EVmENCE   AFFECTING   TITLE.  367 

setting  forth  his  knowledge  of  the  matters  under  inquiry.  Such 
an  instrument,  it  is  true,  possesses  no  legal  validity,  and  not  being 
made  under  the  sanction  of  a  court,  or  in  any  legal  proceeding,  is 
not  strictly  evidence  for  any  purpose,^*  yet  being  usually  all  that 
can  be  adduced,  it  has  been,  as  it  were,  by  common  consent  of  the 
profession,  adopted  as  evidence  in  the  examination  of  titles  and 
the  testimony  taken  as  corroborative  of  general  reputation,  con- 
current possession,  etc.  Such  affidavits,  though  possessing  no  legal 
efficacy,  should  yet  be  attended  with  the  same  solemnities  and 
formalities  that  are  required  in  affidavits  for  use  in  court. 

Ordinarily  where  an  affidavit  is  required,  and  the  statute  does 
not  designate  the  particular  officer  before  whom  the  act  may  be 
performed,  it  may  be  made  before  any  officer  having  general  au- 
thority under  the  statute  to  administer  and  certify  oaths.^®  No 
legal  rules  can  apply  to  affidavits  of  this  nature,  except  inferen- 
tially,  but,  so  far  as  the  same  may  apply,  they  should  be  construed 
by  the  same  standard  as  affidavits  in  legal  proceedings.^**  The  con- 
fents  of  an  affidavit  may  be  shown  in  this  manner: 


Affidavit 

hy 

William  0.  Jones. 


Subscribed  and  sworn  to  Aug. 
4,  1883. 

Recorded  Aug.  8,  1885. 
Book  119,  page  220. 
Venue,  Cook  County,  Ills. 


Recites  that,  affiant  was  tvell  acquainted  with  Rohert  Simpson, 
the  identical  person  named  as  grantor  in  a  deed  from  Robert 
Simpson  to  Walter  Scott,  dated  June  1,  1S79,  and  recorded  June 
2,  1879,  in  Book  52,  page  521  of  the  records  of  Cook  County,  Ills., 
as  document  2,110,  and  that  at  the  date  of  said  deed  said  Robert 
Simpson,  to  the  knowledge  of  affiant,  was  an  unmarried  man. 

Jurat  by  "William  Black,  Notary  Public."  No  Notarial  seal 
of  record.    No  other  designation  of  officer. 

In  the  foregoing  example  it  will  be  perceived,  that  affiant  states 
that  an  individual  named  was  ''an  unmarried  man."  This  is  a 
common,  but  very  unsatisfactory  manner,  of  stating  a  fact  of 
domestic  condition.  In  many  states  it  raises  an  inquiiy  as  to 
whether  he  was  a  divorcee,  with  possible  dower  rights  in  his 
divorced  spouse.     "Whenever  an  affidavit  of  this  kind  is  shown  in 

28  Quinn  v.  Bawson,  5  111.  App.  130.       a  party  before  some  person  who  has 

29  Dunn  v.  Ketchum,  .S8  Cal.  93;  authority  under  the  law  to  adminis- 
Wood  V.  Bank,  9  Cow.  194.  ter   oaths,   and   need   not  be    in   any 

80  An  affidavit  is  simply  a  declara-  particular  form:  Harris  v.  Lester,  80 
tion  on  oath,  in  writing,  sworn  to  by      111.  307. 


368  ABSTRACTS   OF    TITLE.  '  [§  340 

an  abstract  counsel  should  make  a  requisition  for  further  and 
more  definite  information. 

§  340.  Continued — General  Requisites — Sufficiency.    It  is  usual, 

thoug:h  not  necessary,  for  the  affiant  to  subscribe  the  affidavit,  but, 
in  the  absence  of  positive  requirements,  an  affidavit  which  ap- 
pears by  jurat  and  sijrnature  of  an  officer  thereto  to  have  been 
duly  sworn  to,  is  sufficient.^^  On  the  other  hand,  if  the  officer 
fails  to  sign  the  jurat  the  affidavit  is  invalid.'^  An  affidavit  relied 
upon  as  evidence  of  facts  must  allege  the  facts  positively.  Aver- 
ring them  to  exist  as  "affiant  believes"  proves  nothing.''  The 
venue  is  generally  regarded  as  a  material  fact  in  all  affidavits,  yet 
courts  have  exhibited  great  leniency  in  this  particular  and  it  has 
been  held,  that  notwithstanding  the  instrument  is  without  venue 
yet  if  it  is  subscribed  by  an  officer  duly  empowered  to  administer 
and  certify  oaths,  it  will  be  presumed  that  the  oath  was  taken 
only  in  the  county  where  the  officer  Avas  authorized  to  act.'* 

§341.  Unrecorded  Evidence.  A  loose  and  dangerous  habit  pre- 
vails with  many  examiners,  of  incorporating  in  their  examina- 
tions evidences  of  facts  not  disclosed  by  the  records.  This  is 
often  the  case  with  respect  to  affidavits,  releases,  etc.,  the  exam- 
iner usually  putting  such  unrecorded  matter  in  the  shape  of  a 
note,  and  stating:  "Mr.  Blank  has  this  day  exhibited  to  us  an 
affidavit  by  "Wm.  Parsons,  of  Providence,  R.  I.,  wherein  he  states 
that  John  Jones  was  a  bachelor  and  that  he  died  at  Providence, 
K.  I.,  unmarried,"  etc.  But  this  is  the  mildest  form,  for,  in  an 
abstract  now  before  the  writer,  made  by  a  responsible  firm,  is 
the  full  abstract  of  an  instrument  inserted  at  the  request  of 
their  client,  and  which  they  state  in  a  foot-note,  is  "not  recorded 
in  Blank  County,  Tils."  Under  no  consideration  should  this  ever 
be  done  except  in  the  solitary  case  of  titles  emanating  from  the 
government.  Where  the  examiner  possesses  reliable  data,  procured 
from  the  only  authentic  sources,  the  general  land  offices  of  the 
government,  statutes,  etc.,  this  is  not  only  permissible,  but  should 
be  done  as  a  matter  of  course.  In  all  other  cases,  if  the  client 
deems  his  evidence  of  sufficient  importance  to  be  inserted  in  the 
abstract,  it  should  first  be  filed  for  record  in  the  offices  of  regis- 
tration where  it  will  be  properly  covered  by  the  examiner's  cer- 
tificate of  search. 

81  Turpin  v.  Road  Co.,  48  Ind.  45 ;  Kan.    42 ;    Murphy    v.    McGrath,    79 

Cappock  V.  Smith,  54  Miss.  640.  111.  594. 

32  Morris  V.  State,  2  Tex.  App.  502.  34  Hertig  v.  People,  159  111.  2.37. 
8S  Thomson    v.    Higginbotham,    18 


CHAPTER  XXII. 


MORTGAGES. 


§342. 

Nature  of  mortgages. 

§359. 

Mortgage     of     after-acquired 

§343. 

Different      kinds      of      mort- 

property. 

gages. 

§360. 

Record  of  mortgages. 

§344. 

The  equity  of  redemption. 

§361. 

Notice   imputed   from   posses- 

§345. 

Rights  of  mortgagor. 

sion. 

§346. 

Mortgages  as  affected  by  es- 

§ 362. 

Re-records. 

toppel. 

§363. 

Trust  deeds. 

§347. 

Merger. 

§364. 

Power  of  sale. 

§348. 

Equitable  mortgages. 

§365. 

Assignment. 

§349. 

Vendor's  liens. 

§  366. 

Operation    and    effect    of    as- 

§350. 

Mortgages  proper. 

signments. 

§  351. 

Statutory  forms. 

§  367. 

Formal    requisites    of    assign- 

§352. 

Uncertainty   or   error    of    de- 

ments. 

scription. 

§368. 

Release  and   satisfaction. 

§353. 

Covenants  in  mortgages. 

§  360. 

Form    and    requisites    of    re- 

§354. 

Effect  of  special  covenants. 

lease. 

§355. 

Special        stipulations        and 

S  370. 

Release  by  trustees. 

conditions. 

§371. 

Marginal  discharge. 

§356. 

Effect  of  informality. 

§372. 

Foreclosure. 

§357. 

Purchase   money    mortgages. 

§  373. 

Proof    df    title    under    fore- 

§358. 

Mortgage  of  the  homestead. 

closure. 

§  342.  Nature  of  Mortgages.  A  mortgage,  as  defined  by  Chan- 
cellor Kent,  is  a  conveyance  of  an  estate  by  way  of  pledge  for  the 
security  of  a  debt,  to  become  void  on  the  payment  of  it.^  The 
term  "mortgage"  has  a  technical  signification  in  law,  and  when 
used  in  legal  proceedings  as  descriptive  of  a  written  instrument, 
must  be  taken  and  construed  according  to  its  technical  legal  im- 
port. An  equity  of  redemption  is  an  essential  ingredient  and  is 
always  implied,  even  though  no  defeasance  is  expressed  in  the  in- 
strument itself.^ 


1  4  Kent  Com.  136;  Marvin  v.  Tits- 
worth,  10  Wis.  320;  Cooper  v.  Whit- 
ney, 3  Hill,  95.  Any  instrument  of 
conveyance  that  on  its  face  purports 
to  be  given  to  secure  a  payment,  is 
merely  a  mortgage:  Crowles  v. 
Marble,  37  Mich.  158. 

2  Walton  V.  Cody,  1  Wis.  420; 
Peugh  V.  Davis,  96  U.  S.  332;  Wing 


V.  Cooper,  37  Vt.  169;  Bearss  v. 
Ford,  108  111.  16.  "Once  a  mortgage, 
always  a  mortgage,"  is  a  universal 
rule  in  equity,  and  no  agreement  in 
a  mortgage  to  change  it  into  an  abso- 
lute conveyance  upon  any  condition  or 
event  whatever,  will  be  allowed  to 
prevail:  Clark  v.  Henry,  2  Cow.  324. 


369 


Warvelle  Abstracts — 24 


370  MORTGAGES.  [§  342 

A  niortrrajre,  in  form,  purports  to  convey  a  present  legal  estate 
to  the  mortgap:ec,  liable  to  be  defeated  only  by  performance  of 
stipulated  conditions,  and  so  it  was  long  held  that  the  legal  effect 
of  the  instrument  was  to  vest  title  in  the  mortgagee,  subject  only 
to  the  expressed  condition  or  proviso,^  and  the  mortgagor's  riglil 
to  regain  his  estate,  after  condition  broken,  which  was  by  appli- 
cation to  a  court  of  chancery,  was  called  "the  equity  of  redemp- 
tion." The  modern  doctrine  is,  however,  that  a  mortgage  is  but 
a  lien  on  land,  b.v  way  of  security  for  the  debt,  the  legal  title 
remaining  in  the  mortgagor,  subject  only  to  the  lien  of  the  mort- 
gage, and  that  the  "equity  of  redemption"  is  a  legal  right.*  The 
right  of  a  mortgagee  to  hold  the  mortgaged  premises  as  security 
for  his  debt  is  not  an  estate  in  land  and  passes  only  by  an  assign- 
ment of  the  debt." 

§  343.  Different  Kinds  of  Mortgages.  Conveyances  for  the  se- 
curity of  a  debt  or  the  protection  of  creditors,  may  be  divided 
into  three  classes.  The  first  includes  mortgages  properly  so  called, 
being  conveyances  from  debtor  to  creditor,  expressed  to  be  by  way 
of  a  pledge  or  security  for  the  payment  of  an  indebtedness,  or 
for  the  indemnificaiton  of  the  grantee  against  a  particular  loss, 
and  containing  a  clause  of  defeasance  upon  the  performance  of 
the  stipulated  conditions.  To  this  division  also  belongs  that  class 
of  mortgage  securities  technically  known  as  "Trust  Deeds," 
wherein  the  debts  are  specified  and  the  creditors  named  or  de- 
scribed, but  because  of  their  large  number,  or  to  allow  greater 
freedom  in  the  transfer  of  the  evidences  of  the  indebtedness,  or 
from  other  circumstances  making  a  conveyance  directly  to  them 
less  convenient,  the  deed  is  made  to  a  mortgagee  who  combines 

8  Croft    V.    Bunster,    9    Wis.    503 ;  5  Wend.  602.     This  was  originally  the 

Drayton    v.    Marshall,    1    Rice 's    Eq.  equitable  doctrine,  established  to  pre- 

(S.    C.)    373;    Stewart   v.    Barrow,    7  vent  the   hardships   springing   by   the 

Bush   (Ky.),  368.     This  doctrine  still  rules    of   law   from    a    failure    in   the 

prevails   in   a   few   States,    and   in   a  strict  performance   of   the   conditions 

modified    form    in    others;    as,    after  attached    to    the   conveyance,    and    to 

condition  broken  or  default,  the  legal  give  effect  to  the  just  intent  of  the 

title  is  held  to  pass  to  the  mortgagee:  parties   in   contracts   of   this   descrip- 

Johnson  v.  Houston,  47  Mo.  227;  Ful-  tion,  but  has  gradually  been  adopted 

ler  V.   Eddy,  49  Vt.   11.  by  the  courts  of  law. 

4Vason  V.  Ball,  56  Ga.  268;  Wing  5  Mack    v.    Wetzlar,    39    Cal.    247. 

V.    Cooper,    37    Vt.    169;    Fletcher    v.  This  would  seem  to  be  generally  true 

Holmes,    32    Ind.    497;    Carpenter    v.  even    in    those    States    which    regard 

Bowen,  42  Miss.  28;  Woods  v.  Hilde-  a  mortgage  as  a  substantive  form  of 

brand,  46   Mo.    284;    Astor   v.    Hoyt,  conveyance. 


§  344]  MORTGAGES.  371 

the  office  of  trustee,  the  creditors  standing  in  the  position  of 
cestuis  que  trust.^ 

The  second  division  consists  of  conveyances  which  are  absolute 
in  form,  but  being  intended  as  security  for  debt  only,  courts  of 
equity  will  give  effect  to  the  intention  of  the  parties  whatever  may 
be  the  form  of  the  conveyance,  and  treat  the  transaction  as  a 
mortgage,  except  as  against  he  rights  of  bona  fide  purchasers  or 
other  intervening  equities  J  These  are  known  as  "equitable  mort- 
gages," and  being  usually  dependent  on  undisclosed  intention, 
are  to  be  treated  and  considered  in  the  abstract  only  according 
to  their  manifest  legal  import. 

The  third  division  contemplates  all  deeds  of  trust  or  assign- 
ments for  the  payment  of  creditors  generally,^  the  mortgagee  in 
such  case  representing  the  rights  of  the  mortgagor  only.^  Mort- 
gages may  assume  a  variety  of  shapes  and  their  identity  become 
almost  concealed,  but  the  fact  of  security  is  always  sufficient  to 
furnish  an  indication  of  their  true  character.^® 

§  344.  The  Equity  of  Redemption.  The  estate  remaining  in  the 
mortgagor  is  popularly,  but  erroneously,  called  an  "equity  of 
redemption,"  retaining  the  name  it  had  when  the  legal  estate 
was  vested  in  the  mortgagee,  and  the  right  to  redeem  existed  only 
in  equity.  Although  a  misnomer,  it  does  not  mislead.  The  term 
is  convenient  and  its  meaning  well  understood.  The  legal  estate 
remains  in  the  mortgagor  and  is  subject  to  dower  and  curtesy; 
the  lien  of  judgments ;  may  be  sold  on  execution ;  and  may  be  the 
subject  of  mortgage  and  sale,  the  same  as  any  other  estate  in  lands, 
while  the  mortgagee  has  but  a  lien  upon  the  land  as  security  for 
his  debt,  and  the  same  is  not  liable  to  his  debts,  nor  subject  to  any 
of  the  incidents  of  an  estate  in  lands.^^     The  mortgagor  retains 

6 Hurley  v.  Estes,  6  Neb.  386;  Tur-  has  been  held  to  be  a  mortgage:  Eey- 

ner  v.  Watkins,  31  Ark.  429.    A  trust  nolds  v.  Scott,  Brayt.    (Vt.)    75.     So 

deed  executed  to  secure  a  debt  does  of  a  deed  with  a  bond  for  reconvey- 

not  vest  in  the  trustee  the  legal  title  ance:    Wing  v.    Cooper,   37  Vt.   199; 

to  the  land,  which  can  only  be  taken  but  otherwise  upon  facts  stated:  Rich 

away  from  the  grantor  by  foreclosure  v.  Doane,  35  Vt.  125.     So  also  of  a 

or  other  legal  process  in  substantial  deed  with  a  stipulation  that  title  shall 

accord  with  the  deed:   Ingle  v.   Cul-  not  vest  until  the  purchase  money  is 

bertson,  43  Iowa,  265.  paid :    Pugh    v.    Holt,    27    Miss.    461. 

7  Sweet  V.  Mitchell,  15  Wis.  641;  And  generally  any  conveyance  ex- 
French  V.  Burns,  35  Conn.  359;  Shays  pressed  to  be  to  secure  a  payment: 
V.  Norton,  48  111.  100.  Cowles    v.     Marble,     37    Mich,     158; 

8  Bank  v.  Lanahan,  45  Md.   396.  Bearss    v.   Ford,   108   111.    16;    Parks 

9  Spackman  v.  Ott,  65  Pa.  St.  131.  v.  Hall,  2  Pick.  (Mass.)  211. 

10  A  penal  bond  to  reconvey  lands  H  Odell  v.  Montrosa,  68  N.  Y.  499; 


372  ABSTRACTS   OP   TITLE.  f§  344 

and  is  possessed  of  an  estate  in  the  land  in  virtue  of  his  former 
and  original  riy:ht,  and  there  is  no  change  of  ownership.  So  far 
ixs  the  entire  estate  is  concerned,  there  is  but  one  title  and  this  is 
.shaiod  between  the  mortgagor  and  mortgagee,  the  one  being  the 
general  owner  and  the  other  having  a  lieu  which,  upon  a  fore- 
elosure  of  the  right  to  redeem,  may  ripen  into  an  absolute  title, 
their  respective  parts,  when  united,  constituting  one  title. ^'^  The 
possession  of  the  mortgaged  premises  in  no  way  affects  the  right 
of  the  one  to  redeem  or  the  other  to  foreclosure.^^ 

A  party  taking  a  mortgage  on  land  pending  a  bill  to  foreclose 
a  prior  mortgage  or  lien,  will  be  bound  by  the  decree  and  sale 
made  in  the  pending  suit  the  same  as  if  made  a  party  to  the  bill 
to  foreclose,  and  will  be  bound  to  redeem  from  such  sale  within 
the  period  allowed  by  law.  If  he  fails  to  do  so  his  equity  of  re- 
demption will  be  barred,^*  and  his  rights  under  his  mortgage 
will  be  extinguished  and  lost. 

§  345.  Rights  of  Mortgagor.  The  mortgagor,  possessing  the 
legal  as  well  as  the  equitable  title,  may  perform  any  valid  act 
relative  to  the  property,  and  make  any  contract  with  reference  to 
the  title,  subject  to  the  lien  of  the  mortgage,  but  he  can,  it  seems, 
do  no  act  which  shall  be  prejudicial  to  his  mortgagee's  interests 
or  essentially  change  the  legal  character  of  the  land.  Hence,  no 
dedication  to  public  use  of  portions  of  a  parcel  of  land,  made  by 
the  general  owner  after  giving  a  mortgage  upon  it,  can  affect  the 
lien  of  the  mortgage,  and  a  purchaser  at  a  sale  on  foreclosure 
will  take  title  free  of  the  dedication, ^^ 

§  346.  Mortgages  as  Affected  by  Estoppel.  It  is  a  well  settled 
pi'inciple  of  law,  that  if  one  who  has  no  title  to  land  nevertheless 

2  Wash.  Real  Prop.  152;   Gorham  v.  session  of  the  land  and  damages  for 
Arnold,  22  Mich.  247;   White  v.  Hit-  use    and    occupation   after    notice    to 
tenmeyer,  30  Iowa,  268.     This  is  the  quit,  and  if  no  notice,  then  after  the 
general  doctrine,  yet  in  some  States  service   of   the  writ,   and   this   either 
it  is  still  held  that,  after  the  expira-  against  the  mortgagor  or  his  assign- 
tion   of   the  law  day,  the  mortgagor  ee:  Mason  v.  Gray,  36  Vt.  311;   Col- 
or one  occupying  his  position,  is  con-  lame  v.  Langdon,  29  Vt.  32;  Welsh  v. 
sidered  as  tenaut  at  sufferance  of  the  Phillips,  54  Ala.  39. 
mortgagee,   and  liable   to   be   evicted  12  Odell  v.  Montross,  68  N.  Y.  499. 
without  notice  to  quit.     The  mortga-  13  Parsons  v.  Noggle,  23  Minn.  328. 
gee,  in  such  case,  has  a  right  of  entry  14  Pratt  v.   Pratt,   96   111.    184. 
which  he  may  peaceably  assert  with  16  Hague  v.  West  Hoboken,  23  N. 
out  notice  and  without  action;   or  he  J.    Eq.    354;    Walker   v.    Summers,   9 
may,  with   or  without   notice   to  quit,  W.   Va.   533. 
bring  ejectment,  and  may  recover  pos- 


§  347]  MORTQAQES.  373 

makes  a  deed  of  conveyance,  with  warranty,  and  afterward  liimself 
purchases  and  receives  the  title,  the  same  will  vest  innnediately  in 
his  grantee,  who  will  hold  the  land  in  virtue  of  his  deed  with  war- 
ranty, as  against  such  grantor,  by  estoppel.  In  such  case  the  es- 
toppel is  held  to  bind  the  land,  and  create  an  interest  in  it.  The 
grantor,  being  at  the  same  time  the  wararntor  of  the  title  which 
he  has  assumed  the  right  to  convey,  will  not  be  heard  to  set  up  a 
title  in  himself  against  his  own  prior  grant,  nor  to  say  that  he  had 
not  the  title  at  the  date  of  the  conveyance,  or  that  it  did  not  pass 
to  his  grantee  in  virtue  of  his  deed.^^ 

The  doctrine  is  equally  well  settled  that  the  estoppel  binds  not 
only  the  parties,  but  all  privies,  whether  of  blood,  law,  or  estate;  ^'' 
and  in  such  case,  the  title  is  treated  as  having  been  previously 
vested  in  the  grantor,  and  as  having  passed  immediately  upon  the 
execution  of  his  deed,  by  way  of  estoppel.  So  where  a  party  makes 
a  mortgage  with  express  or  implied  warranty  of  title,  he  thereby 
becomes  estopped  from  disputing  that,  at  the  date  of  the  mortgage, 
he  had  the  title  and  conveyed  it;  and  this  estoppel  applies  equally 
to  all  persons  to  whom  such  party  may  make  subsequent  convey- 
ances, by  deed,  after  he  has  obtained  a  title.  Such  subsequent 
grantees  are  estopped  from  denying  that  the  original  grantor  had 
title  to  the  land  at  the  date  of  the  mortgage,  and  he  must,  there- 
fore, for  every  purpose  as  against  his.  grantees,  be  treated  as  hav- 
ing had  the  title  at  that  date.^^  Nor  does  this  doctrine  at  all  mil- 
itate against  the  rule,  that  the  record  of  a  conveyance  made  by  one 
having  no  title  is  a  nullity,  and  constructive  notice  to  no  one. 

When  a  mortgage  is  in  the  statutory  form  it  is  equivalent  to 
one  containing  all  the  usual  covenants  of  title,  and  subsequently 
acquired  titles  inure  to  the  benefit  of  the  mortgagee.^^ 

§347.  Merger.  One  of  the  most  perplexing  incidents  of  title 
that  can  come  to  the  notice  of  the  examiner  in  connection  with 
mortgages,  is  that  which  forms  the  caption  to  this  section,  and  as 
it  is  impossible,  in  the  brief  limits  of  this  work,  to  enter  into  any 
extended  discussion  of  the  subject,  only  passing  reference  can  be 
made  to  it.  The  doctrine,  as  formulated  by  the  earlier  decisions, 
is  that  whenever  a  greater  and  a  less  estate  unite  in  the  same  per- 


16Teft  V.  Munson,  57  N.  Y.  97 
Work  V.  Wellend,  13  N.  H.  389 
Jackson   v.   Bull,   1   Johns.   Cas.    81 


ISTeft  V.  Munson,  57  N.  Y.  97; 
White  V.  Patten,  24  Pick.  324;  Elder 
V.  Derby,  98  III.  228;  R.  &  M.  R.  R. 


White  V.  Patten,  24  Pick.  324;  Pike       Co.  v.  Trust  Co.,  49  lU.  331. 
V.  Galvin,  29  Me.  183.  19  Elder  v.  Derby,  98  111.  228. 

17  Teft  V.  Munson,  57  N.  Y.  97. 


374  ABSTRACTS   OF   TITLE,  [§  347 

soil,  without  any  intermediate  estate,  tlie  lesser  is  merged,'^®  aud 
where  the  k'gal  and  equitable  estates  meet  and  unite  in  the  same 
person  witiiout  an  intervening  interest  outstanding  in  a  third  per- 
son, the  eiiuitable  is  merged  in  the  k'gal  estate,  the  hitter  alone  sub- 
sisting. Thus,  a  eonveyance  by  the  mortgagor  to  the  mortgagee 
extinguishes  the  mortgage.'^^ 

Later  decisions  have  greatly  modified  this  rule  and  it  is  now 
held,  that  where  two  estates  meet  as  above  described,  a  merger  does 
not  necessarily  i'ollow,  but  will  depend  upon  the  intent  and  inter- 
est of  the  parties,  and  where  it  becomes  necessary  to  advance  the 
ends  of  justice,  the  two  estates  will  be  kept  separate ;  thus,  a  deed 
from  a  mortgagor  to  a  mortgagee,  intended  as  additional  security 
only,  aud  not  as  a  satisfaction  of  the  mortgage,  will  not  merge  the 
mortgage  in  the  greater  estate  so  as  to  give  priority  to  another 
mortgage  which  is  a  second  lien.'^'^  So,  also,  in  the  absence  of  a 
special  agreement  to  that  effect,  the  taking  of  a  new  mortgage, 
from  the  same  party  and  on  the  same  property,  will  not  merge  or 
extinguish  a  prior  one.'^*  The  rule,  as  first  stated,  though  inflexible 
at  law,  is  in  equity  controlled  by  the  express  or  implied  intention 
of  the  party  in  whom  the  interests  unite,  and  the  mortgage  interest 
will  in  equity  be  held  to  have  merged  the  fee,  or  otherwise,  accord- 
ing to  the  actual  or  presumed  intention  of  the  mortgagee,^* 

With  respect  to  merger  no  general  rule  can  be  laid  down,  for  the 
question  will  depend  in  each  case  upon  the  interests  and  intent  of 
the  parties,  and  the  demands  of  justice  and  equity.^^  The  most 
rigid  investigation  must  be  made  by  counsel  wherever  an  apparent 
merger  occurs  in  the  title,  as  the  record  does  not  impart  notice  of 
merger,  or  of  any  other  fact  which  depends  alone  on  the  intention 
of  the  parties,  or  other  extrinsic  evidence,  and  if  any  one  takes  a 
conveyance  upon  the  assumption  that  a  former  mortgage  to  his 

20  Jackson  V.  Eoberts,  1  Wend.  478;  jcct  to  the  mortgage,  and  a  third 
James  v.  Morey,  2  Cow.  246.  party,    having    purchased    the    mort- 

21  Jackson  v.  Devitt,  6  Cow.  310.  gage,  afterward,  through  mesne  con- 

22  Huebsch  v.   Schnell,  81  111.  281,  veyances,  obtains  title  to  the  land,  he 

23  Christian  v.  Newberry,  61  Mo.  thereby  becomes  vested  with  the  es- 
446.  tates    of    both    mortgagor    and    mort- 

24  Aiken  v.  R.  R.  Co.,  37  Wis.  469;  gagee;  the  owner  of  the  mortgage 
Morgan  v.  Hammet,  34  Wis.  512;  having  acquired  the  primary  fund  for 
Powell  V.  Smith,  30  Mich.  451 ;  its  payment,  which  is  of  value  equal 
Waterloo  Bank  v.  Elmore,  52  Iowa,  to  the  mortgage,  he  thereby  occupies 
541;   Tower  v.  Divine,  37  Mich.  443.  the  position  of  one  who  has  effected 

2fi  Franklyn  v.  Hayward,  61  How.  a  strict  foreclosure  and  the  mortgage 
Pr.  (N.  Y.)  43.  Where  a  mortgagor  debt  must  be  regarded  as  paid:  Lilly 
sells    the    mortgaged    premises,    sub-       v.  Palmer,  51  111.  331. 


§  348]  MORTGAGES.  375 

grantor  has  been  merged  in  a  subsequent  conveyance  of  the  fee,  he 
does  so  at  his  peril.^^ 

§  348.  Equitable  Mortgages.  It  is  an  established  doctrine  that 
a  court  of  equity  will  treat  a  deed  absolute  in  form,  as  a  mortgage 
when  it  is  executed  as  security  for  a  loan  of  money,  for  the  court 
looks  beyond  the  terms  of  the  instrument  to  the  real  transaction, 
and  when  that  is  shown  to  be  one  of  security,  and  not  of  sale,  it  will 
give  effect  to  the  actual  contract  of  the  parti es.^'''  Such  a  deed  car- 
ries with  it  all  the  incidents  of  a  mortgage,  and  the  rights  and 
obligations  of  the  parties  to  the  instrument  are  the  same  as  if  it 
had  been  subject  to  a  defeasance  expressed  in  the  body  thereof, 
or  executed  simultaneously  with  it.^®  It  is  a  further  established 
doctrine  that  an  equity  of  redemption  is  inseparably  connected 
with  a  mortgage;  that  is  to  say,  so  long  as  the  instrument  is  one 
of  security  the  borrower  has  in  a  court  of  equity  a  right  to  redeem 
the  property  upon  payment  of  the  loan,  and  this  right  can  not  be 
waived  or  abandoned  by  any  stipulation  of  the  parties  made  at  the 
time,  even  if  embodied  in  the  mortgage.  This  is  a  doctrine  from 
which  a  court  of  equity  never  deviates.  "Its  maintenance  is 
deemed  essential  to  the  protection  of  the  debtor,  who,  under  press- 
ing necessities,  will  often  submit  to  ruinous  conditions,  expecting 
or  hoping  to  be  able  to  repay  the  loan  at  its  maturity  and  thus 
prevent  the  conditions  from  being  enforced  and  the  property  sac- 
rificed. "^^ 

In  view  of  these  statements  how  is  counsel  to  determine,  on 
perusal  of  the  abstract,  what  are  and  what  are  not  mortgages,  if 
all  the  instruments  appear  absolute  on  their  face?  There  is  but 
one  answer  to  the  question.  He  can  not.  The  legal  import  of  an 
absolute  conveyance  is  that  it  carries  the  fee,^®  and  any  contradic- 
tion of  its  apparent  effect  must  arise  from  extrinsic  evidence.  This 
latter   counsel   can  not  know,  nor  is  he  expected  to  have  such 

26  Or.  &  Wash.  Trust  Co.  v.  Shaw,  the  reason,  that  such  evidence  is  re- 

5  Sawyer  (C.  Ct.),  336.  eeived  not  to  contradict  an  instrument 

27Peugh   V.  Davis,   96   U.   S.    332;  of   writing,   but   to   prove    an   equity 

Klein    v.    McNamara,    54    Miss.    90;  superior  to  it:    Saunders  v.   Stewart, 

Carr  v.  Carr,  52  N.  Y.  251;   Shays  v.  7  Nev.  200;  Wilcox  v.  Bates,  26  Wis. 

Norton,  48  111.  100;   Turner  v.  Kerr,  465. 

44  Mo.  429 ;  Moore  v.  Wade,  8  Kan.  28  Odell  v.  Montrose,  68  N.  Y.  499. 

380;    Kerr    v.    Agard,    24    Wis.    378.  29  Field,  J.,  in  Peugh  v.  Davis,  96 

The  rule   that  parol  proof  is  admis-  U.   S.   332;    Clark   v.    Henry,   2   Cow. 

sible   to  show  that  a   conveyance   of  324;  and  see  Walton  v.  Cody,  1  Wis. 

real  estate,  absolute  upon  its  face,  was  420;   Bearss  v.  Ford,  108  111.  16. 

intended  to  be  a  mortgage  or  security  30  A   conveyance   of  the   legal   title 

merely,  is  recognized  and  applied  for  to  secure  the  payment  of  money  dif- 


376  ABSTRACTS   OF   TITLE.  [§  348 

knowledge.  The  record  rarely  furnishes  any  clew  to  the  true 
character  of  this  class  of  conveyances,  the  facts  governing  their 
equitable  nature  resting  entirely  in  parol,  hence  questions  of  this 
kind  can  seldom  arise  in  the  preparation  of  abstracts  and  only  in- 
cidentally in  passing  upon  titles.  The  examiner  can  judge  of  the 
legal  sufficiency  and  effect  of  instruments  only  as  they  are  pre- 
sented on  the  record.^^  Subsequent  purchasers  for  value,  without 
notice,  will  be  protected  by  the  record,  and  where  one  in  posses- 
sion of  land,  under  a  conveyance  absolute  on  its  face,  sells  the  same, 
his  grantee,  without  notice  that  his  vendor's  deed  was  but  a 
mortgage,  Avill  hold  the  |)ro])ei-ty  free  from  any  c((uity  of  redemj)- 
tion ;  ^2  and  even  though  a  court  of  equity  afterward  decides  that 
the  conveyance  was  in  fact  a  mortgage,  and  that  the  mortgagor  is 
entitled  to  his  equity  of  redemption,  yet  the  title  to  the  property 
will  not  be  disturbed,  but  judgment  in  personam  will  be  given 
against  the  mortgagee  for  the  amount  equitably  due  by  him  to  the 
mortgagor.'* 

"When  a  lien  on  land  is  expressly  reserved  in  the  deed  convey- 
ing such  land,  which  is  duly  recorded,  a  clear  equitable  mortgage 
is  created  of  which  every  one  is  bound  to  take  notice;  '*  but  some- 
thing more  than  a  mere  reservation  oP  a  right  to  purchase,  or  cove- 
nant to  reconvey,  must  be  shown  in  order  to  convert  a  deed  absolute 

fers    from    a    statutory    mortgage    in  82  Jenkins    v.    Kosenburg,    105    111. 

that  the  legal  title  passes  to  the  gran-  157. 

tee,   the   grantor  reserving  the   right  83  Baugher    v.    Merryman,    32    M<i. 

iu  equity  to  redeem.    This  right,  how-  186;    Jackson  v.   McChesney,  7   Cow. 

ever,  may  become  barred  by  the  etat-  360;    Grimstone   v.    Carter,    3    Paige, 

ute  of  limitations,  and  vrhen  so  barred  421. 

that  an   action   for   affirmative  relief  84  Davis     v.     Hamilton,     50     Mies, 

can  not  be  maintained  thereon,  it  can  213;    Armentrout's   Exr.   v.   Gibbons, 

not  be  interposed  as  a  defense  to  an  30     Gratt.     (Va.)     652;     Dingley    v. 

action  by  the  grantee  to  recover  pos-  Bank,  57  Cal.  467;   as  -where  a  deed 

session  of  the  property:   Eiehards  v.  contains   n    stipulation    that   no    title 

Crawford,  50  Iowa,  494.   See,  Edwards  shall   vest  until  the   purchase   money 

V.  Trumbull.  50  Pa.  St.  509;  Shaw  v.  has    been    paid    (Pugh    v.    Holt,    27 

Wiltshire,   65   Me.   485.      This   result  Miss.  461;   Austin  v.  Downer,  25  Vt. 

always  follows  if  the  instrument  be  558,   or   that   the   deed   shall    be   ab- 

recorded  in  the  record   of  deeds  and  eolute    on    the    payment    of    certain 

not  of  mortgages:  Brown  v.  Dean,  3  notes,   but   in    default  thereof   to   be 

Wend.  (N.  Y.)  208.  void    (Bank    v.    Drummond,    5    Mass. 

Slit   is   the    settled    policy   of    the  321).      So  if  it  be   for  the  perform- 

law   to   give    security    to,    and   confi-  ance  of  any  other  duty,  such  as  main- 

dence  in,  titles  to  the  landed  estates  tenance   of   the    grantor    during   life, 

of  the  country  which  appear  of  record  etc.:    Lanfair    v.    Lanfair,    18    Pick, 

to  be  good:  McVey  v.  McQuality,  97  (Mass.)  299. 
111.  93. 


§  350]  MORTGAGES.  377 

on  its  face  into  a  mortgage.^^  There  is  no  positive  rule  that  a  cove- 
nant to  reconvey  shall  be  regarded,  either  in  law  or  equity,  as  a 
defeasance.  The  owner  of  lands  may  be  willing  to  sell  at  the  price 
agreed  upon,  and  the  purchaser  may  also  be  willing  to  give  the 
vendor  the  right  to  repurchase,  upon  specified  terms.  Such  a  con- 
tract is  not  opposed  to  public  policy,  nor  is  it  in  any  sense  illegal.*^ 
Equitable  mortgages  arising  from  the  deposit  of  title  deeds  are 
not  generally  recognized,^'  and  the  common-law  doctrine  respecting 
pledges  of  this  kind  can  not  be  said  to  prevail  in  this  country. 

§  349.  Vendor's  Liens.  It  has  long  been  settled  that  the  vendor 
of  real  property,  notwithstanding  he  has  conveyed  the  legal  title, 
has  a  lien  on  such  property  for  the  unpaid  purchase  money  while 
it  remains  in  the  hands  of  the  vendee,  or  volunteers  or  purchasers 
with  notice.  This,  however,  applies  mainly  to  implied  liens,  for 
where  there  is  a  district  reservation  of  lien  upon  the  face  of  the 
deed,  it  has  been  held-to  constitute  a  specific  charge  upon  the  land 
as  valid  and  effectual  as  a  deed  of  trust  or  mortgage,^®  and,  fur- 
ther, that  the  lien  being  set  forth  in  the  very  first  link  of  the 
vendee's  claim  of  title,  purchasers  from  him  have  just  as  much 
notice  of  it  as  they  would  have  had  of  a  lien  on  the  land  by  mort- 
gage or  trust  deed.^^  ' ' Indeed, ' '  says  Staples,  J .,  "it  may  be  a  ques- 
tion whether  a  reserved  lien  is  not  of  a  higher  nature  than  a  mere 
mortgage  security.  In  many  cases  the  mortgage  is  treated  as  a 
mere  incident  to  the  debt,  whereas  the  lien  reserved  is  an  express 
charge  inherent  in  its  nature  upon  the  land  which,  in  equity,  is 
the  natural  primary  fund  for  its  payment. ' '  '^° 

§350.  Mortgages  Proper.  A  mortgage  may  be  made  by  an 
absolute  conveyance  with  a  defeasance  back,  but  this  form  has 
never  been  in  general  use  in  the  United  States,  and  is  now  obso- 
lete. The  class  of  conveyances  to  which  this  name  is  technically 
applied  consists  of  an  instrument  in  form  purporting  to  convey  a 
present  estate  to  the  mortgagee,  liable  to  be  defeated  by  the  per- 

86  But   see    Peterson    v.    Clark,    15  38  Arinentrout  's  Ex  'rs   v.   Gibbons, 

Johns.  (N.  Y.)  205.  30    Gratt.    (Va.    632) ;    Carpenter    v. 

86Hanford  v.  Blessing,  80  111.  188;  Mitchell,  54  111.  126. 

Henly  V.  Hotaling,  41  Gal.  22 ;  Glover  39  Patton      v.      Hoge,     22     Gratt. 

V.  Payn,  19   Wend.   518.  (Va.)  443;  Hines  v.  Perkins,  2  Heisk. 

37Probasco    v.    Johnson,    2    Disney  (Tenn.)   395. 

(Ohio),  96.     The  registry  of  a  mort-  40  Coles  v.  Withers,  33  Gratt.  (Va.) 

gage  is  a  substitute  for  the  deposit  186. 
of  the  title  deeds:  Johnson  v.  Stagg, 
2  Johns.  510. 


378  ABSTRACTS   OP    TITLE.  [§  350 

formance  of  stipulated  conditions,  and  is  always  between  the  prin- 
cipals to  the  transaction.  Where  the  mortgage  remains  a  valid 
and  subsisting  lien,  it  is  advisable  to  narrate  its  essential  terms 
quite  fully,  and  when  followed  by  foreclosure,  if  other  than  by  suit 
in  ehancei-y,  to  relate  witli  minuteness  of  detail  the  power  of  sale 
and  other  provisions,  by  authority  of  which  the  foreclosure  was 
made.  "Where  the  mortgage  has  been  fully  paid,  satisfied  and  dis- 
charged, there  exists  no  good  reason  why  it  should  appear  at  all, 
any  more  than  a  judgment  which  has  been  satisfied ;  yet  it  is  the 
universal  custom  of  abstract  makers  to  show,  in  the  regular  course 
of  title,  both  the  mortgage  and  its  subsequent  assignments,  if  any, 
and  the  dist-harge.  Questions  may  sometimes  arise  that  render  an 
abstract  of  satisfied  liens  convenient  or  material,  yet,  as  a  rule, 
onlj'  the  briefest  outline  should  be  presented,  sufficient,  in  fact,  to 
show  the  transaetion  and  no  more,  that  confusion  may  not  result 
from  the  mingling  of  satisfied  and  unsatisfied  liens.  The  following 
example  shows  all  that  is  necessary: 

James  Bryant  1      Mortgage, 

to  Dated,  etc. 

Thoma>i  Vaughan.  |  *  *  «  * 

To  secure  the  payment  of 
$5,000.00.  Conveys  the  East  half  of  the  South  West  quarter  of 
Section-  eleven.  Town  38  North,  Range  13  East  of  the  3d  P.  M. 

The  release   should  immediately  follow. 

An  unsatisfied,  unforeclosed  mortgage  may  be  sufficiently  pre- 
sented as  follows : 


Richard  Thompsan  and  Elvira, 
his  wife, 
■  to 
Mortimer  Giddings. 


Martgage. 

Dated  May  1,  1920. 

Recorded  May  2,  1920. 

Book  590,  pg.  253. 

To  secure  the  payment  of 
$500.00  in  three  years  from  the  date  hereof,  with  interest  at  six 
per  cent,  per  annum,  evidenced  hy  said  Richard  Thompson's  one 
promissory  note  of  even  date  herewiih.^^ 

*l  It    is    the    universal    custom    to  pen    that    no    separate    obligation    is 

witness  the  obligation  of  payment  by  taken,  and  the  absence  of  a  bond  or 

a  bond  or  promissory  note,  the  mort-  other   express   obligation   to   pay   the 

gage    simply   stipulating    that    if    the  money  will  not  make   the   instrument 

money    be    paid    by    the   day   named,  any  less  effectual  as  a  mortgage,  pro- 

the  mortgage  as  well  as  the  obligation  vided,  of  course,  that  the  mortgagor 

shall  be  void;  but  it  may  often  hap-  had  the  money. 


§350]  MORTGAGES.  379 

Conveys  land  in  Brown  County,  Ills.,  descrihed  as  lot  one,  in 
block  one,  of  the  Village  of  Cherry  Vale,  being  part  of  the  north- 
east quarter  of  section  ten,  toum  one  north,  of  range  five  east  of  the 
third  Principal  Meridian. 

First  party  covenants  to  keep  buildings  insured.  Default  in  pay- 
ment of  interest,  non-payment  of  taxes,  or  a  breach  of  any  of  the 
covenants,  to  render  principal  due. 

Homestead  rights  waived. 

Acknowledged  May  1,  1920. 

In  mortgages,  as  now  usually  drawn,  there  is  no  power  of  sale, 
but  for  many  years  this  was  the  practice.  "Where  the  mortgage 
contains  this  power  it  should  be  briefly  noticed.     Thus: 

Power  of  sale  given  on  default  after  thirty  days'  notice.^^ 

The  above  sufficiently  designates  the  character  and  effect  of  an 
ordinary  mortgage  between  individuals  before  default  or  foreclos- 
ure, or  if  followed  by  foreclosure  in  equity.  When  foreclosed  by 
advertisement,  if  the  mortgagee's  deed  is  shown  in  the  same  exam- 
ination, instead  of  the  reference  to  the  power  of  sale  above  given, 
set  out  the  entire  clause  and  accompanying  conditions.  When  a 
foreclosure  by  advertisement  and  sale  follows  a  mortgage  shown 
in  a  former  examination,  or  one  appearing  prior  to  the  commence- 
ment of  a  search,  a  note,  embodying  the  power  of  sale,  should 
be  appended  to  the  abstract  of  the  mortgagee's  deed,  in  the  same 
manner  as  the  example  given  of  a  trustee's  deed,  to  which  the 
reader  is  referred. 

Where  the  mortgage  is  given  by  a  corporation,  married  woman, 
person  under  guardianship  or  other  disability,  a  greater  degree 
of  detail  is  of  course  required,  and  all  special  matter,  relating  to 
capacity,  power  to  act,  character  of  parties,  etc.,  should  be  shown 
as  in  cases  of  absolute  conveyance  by  deed.  So,  also,  unusual 
clauses,  conditions,  stipulations  or  covenants,  t(Miding  to  shed 
light  on  the  transaction,  or  to  limit  or  define  the  nature  of  the 
lien  or  security  given,  must  in  like  manner  be  specifically  shown. 
The  example  given  in  this  section  is  to  be  considered  rather  as  a 
suggestion  than  as  a  form,  as  are  many  other  examples  in  this 
book,  and  whenever  any  of  the  above  mentioned  incidents  occur 
they  should  find  appropriate  mention. 

42  When  followed  by  foreclosure 
under  the  power,  set  out  the  terms 
thereof  fully.      See    §§    284,   363. 


380  ABSTRACTS   OP   TITLE.  [§  350 

A  ninrtfjafre,  after  judicial  foreclnsnro,  altlioufrli  in  some  sense 
merjred  in  the  deereo.  remains  a  muniment  title  which  passes  to 
the  purchaser  at  the  mortjxagfe  sale,  to  be  looked  to,  not  only  for 
the  purpose  of  ascertaining  the  time  at  which  the  mort^apje  lien 
attached,  hut  also,  in  Ihe  absence  of  express  directions  in  the 
decree  limiting  the  estate  to  be  sold,  the  quantity  and  quality  of 
the  estate  conveyed  by  way  of  mortgra.s:e.*' 

§  351.  Statutory  Forms.  As  in  case  of  absolute  deeds,  statutory 
forms  I'or  moitfiraws  arc  now  prescribed  in  many  States,  luit,  like 
such  deeds,  from  their  meagerness  of  detail,  liave  not  come  into 
very  jreneral  use  in  many  localities.  The  statutory  words  of 
conveyance  and  pledge  are  "moi-tgage  and  warrant"  and  in  all 
abstracts  of  such  mortgages  the  operative  words  should  be  in- 
serted as  they  appear  in  the  oi-igina^.  The  Avord  "mortgages"  is 
sufficient,  under  the  statute,  to  create  a  mortgage  in  fee,  while  the 
addition  of  the  words  "and  warrants"  carries  the  legal  import 
and  effect  of  full  covenants  of  seizin,  right  to  convey,  freedom 
from  iucnmbrances,  quiet  enjoyment  and  general  Avarranty. 

§  352.  Uncertainty  or  Error  of  Description.    The  observations 

heretofore  made**  in  regard  to  nncertain  or  erroneous  descrip- 
tions in  deeds  are  all  applicable  to  mortgages,  for  the  policy  of 
the  law  requires  that  they  give  definite  information,  not  only  as 
to  the  debt  secured,  but  as  to  the  property  mortgaged  as  well.*^ 
^Material  omissions,  or  even  misdescription,  will  not  invalidate 
the  instrument,  where  other  adequate  elements  of  identification 
exist,*^  but  purchasers  without  notice  will  be  bound  only  by  the 
description  furnished  by  the  mortgage.*'' 

Tt  is  a  rule  of  general  observance  that  a  moi-tgage.  to  be  ef- 
fective, must  in  some  way  describe  and  identify  the  indebtedness 
it  is  intended  to  secure.  Literal  accuracy  in  desci-ibin-.,'  the  debt 
is  not  rec|uired,  but  the  desciMption  must  be  con-ect  as  far  as  it 
goes  and  must  be  full  enough  to  define  the  obligation  with  rea- 
sonable certainty,  or,  it  must  dire<'t  alteulioji  to  other  snurce^'. 
where  correct   information   conccrnijig  llic  dcld    may  he  obtained. 

43  Vallcjo  Land  Assoc,  v.  Viera,  48  285;  Murphy  v.  Hondrickji,  57  Ind. 
Cal.  572.  593. 

44  See  "Errors,  Omissions  and  De-  46  Slater  v.  Breese,  36  Mich.  77; 
fects,"   §  205.  Boon  v.  Pierpont,  28  N.  J.  Eq.  7. 

46  Herman     v.     Deming,    44    Conn.  47  Disque  v.  Wright,  49  Iowa,  538; 

124;     Simmons    v.    Fuller,    17    Minn.       Simmons  v.  Fuller,  17  Minn.  485. 
485;    Galaway    v.    Malchou,    5    Neb. 


§  353]  MORTGAGES.  381 

In  every  event  it  must  be  of  such  a  character  as  not  to  mislead  or 
deceive,  either  as  to  the  nature  of  the  debt  or  its  amount.*^  If 
the  mortgage  is  given  to  secure  an  ascertained  debt,  then  the 
amount  of  the  debt  should  be  stated;  if  it  is  intended  to  secure 
a  debt  not  ascertained  such  data  should  be  furnished  respecting 
the  debt  as  would  put  any  one  interested  in  the  inquiry  upon  the 
track  leading  to  the  discovery.  If  it  is  given  to  secure  an  ex- 
isting or  future  liability,  the  foundation  of  such  liability  should 
be  set  forth.*^ 

It  will  sometimes  happen  that  a  mortgage  is  found  upon  the 
records  which,  while  correctly  describing  the  land  which  forms 
the  subject  of  the  examination,  is  yet  executed  by  a  party  who,  so 
far  as  the  records  disclose,  is  a  stranger  to  the  title.  Such  an 
occurrence  raises  several  questions.  It  may  be  an  assertion  of 
adverse  title,  and  the  duty  of  investigation  devolves  on  counsel 
who  examines  the  abstract.  Usually,  however,  it  is  only  a  mis- 
take of  the  draughtsman  who  prepared  the  mortgage  and  through 
inadvertence  inserted  a  wrong  description.  But  even  though  the 
examiner  is  satisfied  that  a  mistake  has  been  made,  yet,  as  the 
mortgage  correctly  describes  the  land  under  examination  he  has 
no  option  and  must  show  it  in  the  abstract  as  he  finds  it  on  the 
record.  In  such  cases  a  note  of  some  kind  should  follow  the 
synopsis  for  the  benefit  of  counsel.  The  following  is  a  sugges- 
tion: 

Note: — We  find  on  record  no  conveyance  to  Thomas  Jones  of  the 
land  described  in  the  foregoing  mortgage. 

§  353.  Covenants  in  Mortgages.  As  mortgages  are  now  drawn 
personal  covenants  are  not  usually  inserted,  but  whenever  they 
are  inserted  they  have  the  same  operation  «s  in  deeds  of  bargain 
and  sale.  A  brief  allusion  to  the  covenants  of  a  mortgage  may  be 
profitably  made,  and  whei-e  tJie  words  of  grant  which  imply 
covenants  are  employed,  and  no  express  covenants  are  inserted  ni 
the  instrument,  such  words  should  always  be  stated  as  in  case  of 
deeds.  The  words  "grant,  bargain  and  sell"  are  sufficient  to 
create  an  estoppel,  and  any  subsequent  interest  tlie  mortgagor 
may  aciquire  in  and  to  the  mortgaged  premises  will  pass  by  flic 
mortgage  or  any  sale  that  may  be  made  pursuant  to  its  terms.**** 

48  New   V.    Sailors,    114    Ind.    407;  49  Bullock  v.  Battenhousen,  108  111. 

Pettibone  v.   Griswold,   4   Conn.   158;  .36. 

Bullock     V.     Battenhousen,     108     111.  60Oibhons  v.  Hoag,  95  111.  45;  Teft 

36;  Curtis  v.  Flynn,  46  Ark.  70,  v.  Munson,  57  N.  Y.  97, 


382  ABSTRACTS   OF   TITLE.  [§  353 

It  is  is  a  rule,  howpvor.  in  oi-dinary  cases  of  forodosiiro,  that 
the  title  ordered  to  he  sold  is  only  the  title  wliich  Avas  held  hy  the 
mortpraofor  at  the  date  of  the  mortgasre,*^  and  when  a  mortp^age 
contain inp:  no  covenant  of  Avarranty  has  been  foreclosed,  and  the 
relation  of  mortprapror  and  mortp:ap:ee  has  been  extinguished  by 
a  sale  of  the  mortgaged  lands,  the  former  is  under  no  duty  to 
proteet  the  title  of  the  purchaser,  nor  is  he  precluded  from  sub- 
sequently acquiring  and  claiming  under  an  outstanding  and  para- 
mount title.^^  "The  imrchaser  is  presumed  to  knoAV  the  condi- 
tions of  the  title  Avhich  he  purchases,"  says  Andrews,  J.,  "and  if 
it  is  defective  his  l)id  is  regu\nted  in  view  of  such  defcM't.  Tf  the 
premises  bring  enough  to  satisfy  the  mortgage  debt  it  would  be 
inequitable  to  allow  him  to  claim  an  interest  subsequently  ac- 
quired bj'  the  mortgagor,  and  Avhich  he  did  not  purchase  and  was 
no  part  of  the  consideration  of  the  sale.  Tf  there  is  a  deficiency, 
that  becomes  a  personal  charge  against  the  party  bound  to  pay 
the  debt,  in  favor  of  the  creditor.  DitTei-ent  considerations  would 
apply  when  the  mortgage  contained  covenants  of  warranty.  In 
that  case  the  consideration  paid  would  represent  the  value  of  the 
land  as  warranted,  and  the  mortgagor  would  be  estopped  from 
setting  up  an  after  acquired  title,  against  which  he  covenanted 
in  the  mortgage. ' '  *' 

§  354.  Effect  of  Special  Covenants.  In  addition  to  the  ordinary 
covenants  of  title  and  warranty,  a  series  of  special  covenants 
are  found  in  mortgages  which  do  not,  as  a  rule,  directly  affect 
title.  These  covenants  are  sometimes  annexed  to  conditions  and 
stipulations,  but  may  be  separate  from  them  and  from  the  subject 
to  which  the  stipulations  aUude.  Of  this  nature  is  the  covenant 
to  keep  the  mortgaged  property  insured  for  the  benefit  of  the 
mortgagee.  Such  a  covenant  creates  a  specific  equitable  lien  upon 
the  insurance  money,  which  is  valid  as  against  the  creditors  of 
the  mortgagor.  The  mortgage  being  recorded,  the  covenant  acts 
upon  the  insurance  as  soon  as  affected,  runs  with  the  land,  and 
furnishes  notice  to  third  persons;  and  no  subsequent  assignment 
or  other  act  can  affect  the  rights  of  the  mortgagee.  It  is  not 
necessary-  that  the  policies  be  assigned,  nor  that  the  mortgagee 
select  the  companies,  and  any  acts  of  the  mortgagor  without  the 

61  Kreichbaum  v.  Melton,  49  Cal.  63  Jackson  v.  Littell,  56  N.  Y.  108. 
51.                                                                    And  see,  Vallejo  Land  Assoc,  v.  Viera, 

62  Jackson  v.  Littell,  56  N.  Y.  108.       48  Cal.  572. 


§  355]  MORTGAGES.  383 

consent  of  the  mortgagee  will  not  defeat  the  effect  of  the  cove- 
nant." 

§355.  Special  Stipulations  and  Conditions.  Many  mortgagees 
insist  upon  a  number  of  special  stipulations  and  conditions  iu 
mortgages  accepted  by  them,  and  frequently  they  are  of  such  a 
nature  that  they  can  not  be  consistently  passed  by  the  examiner 
without  notice. 

The  stipulation  for  insurance  for  the  mortgagee 's  benefit,  being 
intended  to  afford  security  supplementary  to  and  connected  witli 
the  mortgage,  and  to  keep  the  mortgaged  property  itself  so  far 
intact  as  a  means  of  security  as  to  perpetuate  the  safety  of  the 
mortgagee's  interest  in  case  the  buildings  should  burn,  is  in 
equity  a  sort  of  adjunct  to  the  mortgage,  and  is  binding  on  the 
mortgagor  and  all  others  who  may  succeed  to  his  rights  with 
notice.^^ 

The  stipulation  that  in  ease  of  a  default  in  the  payment  of 
interest  the  principal  shall  immediately  become  due  and  payable, 
and  that  the  mortgagee  may  immediately  proceed  to  foreclose,  is 
an  essential  part  of  the  contract  and  may  be  enforced,*^  and  the 
same  rule  applies  to  the  similar  stipulation  relative  to  the  non- 
payment of  taxes.^''' 

A  provision  that  the  mortgagee,  upon  default,  shall  be  entitled 
to  the  immediate  possession  of  the  premises  is  generally  regarded 
as  valid,  and  of  this  provision  subsequent  purchasers  and  incum- 
brancers are  charged  with  notiee.^^ 

A  stipulation,  whereby  the  mortgagee  assumes  and  agrees  to 
pay  a  prior  mortgage  on  the  premises,  does  not  impose  upon  the 
mortgagee  a  personal  liability  for  the  prior  mortgage  debt,  which 
can  be  enforced  against  him  by  the  prior  mortgagee,  for  the  stip- 
ulation in  such  case  is  not  a  promise  made  by  the  mortgagee  to 
the  mortgagor  for  the  benefit  of  the  prior  mortgagee,  but  is  a 
promise  for  the  benefit  of  the  mortgagor  only;  it  is  to  protect  his 
property  by  advancing  money  to  pay  his  debt.^^     In  this  respect 

64  In  Ee  Sands'  Ale  Brewing  Co,  66  Gulden  v.  b 'Byrne,  7  Phil.  (Pa.) 

3    Biss.    175.      In    this    matter,    the  93;  Malcom  v.  Allen,  49  N.  Y.  448; 

question  was  raised  by  the  assignee  Meyer  v.  Graeber,  19  Kan.  165;  Cook 

ia  bankruptcy  of  the  mortgagor.  v.  Clark,  68  N.  Y.  178. 

55  Miller  v.  Aldrieh,  31  Mich.  408.  57  Stanclifts    v.    Norton,    11    Kan. 

A  failure  in  this  respect  constitutes  218. 

such    a    default    as    will    justify    the  58Felino    v.   Lumber   Co.,   64   Neb. 

mortgagee  in  selling  under  the  pow-  335;    and    see,    Frink    v.    LeRoy,   49 

er     in     the     mortgage:      Walker     v.  Cal.  314. 

Cockey,  38  Md.  75.  69  Garnsey  v.  Eogers,  47  N.  Y.  233. 


384  ABSTRACTS   OF   TITI^.  [§  355 

it  differs  t'l'oni  a  similar  stipulation  coiitaiiied  in  an  al)soluto  con- 
veyance. 

All  stipulations  which  are  essential  parts  of  the  contract,  or 
which  tend  to  induce  foreclosure  before  the  expressed  time  of  the 
maturity  of  the  debt,  particularly  when  the  mortgage  contains  a 
power  of  sale  by  advertisement,  should  be  stated  or  definitely  al- 
luded to. 

§  356.  Effect  of  Informality  in  Mortgages.  Mortgages,  or  con- 
veyances by  way  of  security  in  the  nature  of  mortgages,  are  sel- 
dom void  for  informality  unless  the  informality  or  omission  goes 
to  the  groundwork  of  the  instrument,  and  a  mortgage  or  trust 
deed,  otherwise  complete  but  lacking  in  some  formal  particular, 
though  it  may  be  denied  legal  eifect,  will  yet  be  enforced  in 
equity  as  au  equitable  mortgage,  and  this  protection  will  extend 
to  tlie  assignee  as  well  as  to  the  original  mortgagee.^*'  The  I'ulc 
has  been  held  to  apply  in  case  of  a  trust  deed  which  omitted  the 
name  of  the  trustee  ;^^  and  to  a  mortgage  which  did  not  purport 
to  be  sealed;*'^  and  where  the  seal  had  been  omitted ;  *'^  where  the 
instrument  was  imperfectly  witnessed,  as  where  there  was  but  oiu' 
witness,  and  the  statute  required  two;^*  to  imperfectly  ai-knowi- 
edged  instruments;*'^  and  even  to  the  want  of  an  acknowledg- 
ment.^^ Whenever  a  mortgage  is  sufficient  as  between  the  parties 
it  will  affect  all  third  persons  who  have  actual  knowledge  or  no- 
tice of  its  existence,^'^  and  purchasers  with  s\ich  notice  will  take 
subject  to  .the  equities  created  by  such  defective  mortgage.^^ 

§357.  Purchase  Money  Mortgages.    A  mortgage  expressed  to 

be  for  the  whole  or  a  j[iart  of  the  purchase  money  of  the  mortgaged 
property  should  be  so  described  in  the  abstract,  as  such  mortgages 
stand  upon  a  somewhat  different  footing  from  other  conveyances 
by  way  of  security.  The  peculiar  qualities  of  a  purchase  money 
mortgage  are  derived  from  statutes,  under   which   it   becomes  a 


The  same  rule  applies  to  a  deed  ab-  64  Gardner  v.   Moore,   51   Ga.   268; 

solute  on  its  face,   but,  in   fact,   in-  Sanborn  v.  Eobinson,  54  N.  H.  239. 

tended  as  a  mortgage.  66  Haskill  v.   Sevier,  25   Ark.   152 ; 

eOMcQuie    V.    Peay,    58    Mo.    56;  Zeigler  v.  Hughes,  55  111.  288. 

McClurg  V.  Phillips,  49  Mo.  31.  66  Black  v.   Gregg,  58  Mo.  565. 

eiMcQuie  V.  Peay,  58  Mo.  56.  67  Gardner   v.   Moore,   51   Ga.   268; 

62  Jones  v.  Brewer,  58  Me.  210.  Sanborn  v.  Robinson,  54  N.   H.  239; 

63  Harrington    v.    Fortner,    58    Mo.  Wilson  v.  Keuter,  29  Iowa,  176. 
468;    Van    Riswick    v.    Goodhue,    50  68  Gardner  v.  Moore,  51  Ga.  268. 
Md.  57. 


§  358]  MORTGAGES.  385 

lien  upon  the  entire  estate  of  the  mortgagor  in  the  land,  freed 
from  any  contingent  claim  of  the  wife,  whether  she  be  a  party  to 
the  mortgage  or  not ;  ^^  neither  will  she  be  a  necessary  party  to  a 
suit  for  foreclosure  of  a  purchase  money  mortgage,  in  the  execu- 
tion of  which  she  had  not  joined,  if  such  suit  be  brought  in  the 
lifetime  of  the  husband.''® 

So,  too,  a  purchase  money  mortgage,  executed  contempora- 
neously with  the  deed  of  purchase,  will  take  precedence  over  the 
lien  of  a  prior  judgment  against  the  mortgagor. ''^^ 

The  fact  in  itself  is  important,  but  it  may  be  stated  in  very 
brief  terms,  which  is  usually  done  by  a  parenthetical  clause  in  con- 
nection with  the  recital  of  the  indebtedness;  thus: 

To  secure  the  payment  of  $4,000.00  (part  purchase  money) 
evidenced  hy  four  notes,  etc. 

The  same  fact  may,  if  so  desired,  be  stated  more  fully,  by  a 
distinct  allusion  to  the  purchase  money  clause  in  the  body  of  the 
instrument,  in  this  manner: 

This  mortgage  is  given  (it  is  stated)  to  secure  the  payment  of 
(a  portion  of)  the  unpaid  purchase  money  for  said  ahove  de- 
scribed premises. 

§358.  Mortgages  of  the  Homestead.  The  jealous  care  with 
which  the  law  guards  the  homestead  is  never  more  fully  exem- 
plified than  in  the  safeguards  and  restraints  which  it  has  placed 
upon  all  attempts  to  incumber  it;  and  in  all  conveyances  of  prop- 
erty, whether  by  deed  or  mortgage,  the  character  of  the  prem- 
ises, considered  in  relation  to  its  use  and  occupancy,  is  an  inquiry 
never  to  be  omitted.  In  some  States  no  valid  mortgage  of  the 
homestead  can  be  effected ;  '^  in  a  majority  of  the  others  such 
mortgage  is  effectual,  only  when  there  has  been  a  special  release 
and  waiver  of  the  homestead  right ;  "^^  while  in  all  the  States,  the 
free  and  voluntary  assent  of  the  wife,  the  mortgagor  being  a  mar- 
ried man,  is  a  condition  precedent  to  the  vesting  of  the  lien.''* 

69  Fletcher  v.  Holmes,  32  Ind.  497;  Ann.  330;  and  see  Moughon  v.  Mas- 
Amphlet  v.  Hibbard,  29  Mich.  298;  terson,  59  Ga.  835;  CampbeU  v.  El- 
Thompson  V.  Lyman,  28  Wis.  266.  liott,  52  Tex.  151. 

70  Fletcher  v.  Holmes,  32  Ind.  497.  73  Trustees   v.   Beale,   98   HI.    248; 

71  Stewart  v.  Smith,  36  Minn.  82;  Browning  v.  Harriss,  99  111.  456; 
Cake's  Appeal,  23  Pa.  St.  186.  Balkum  v.  Wood,  58  Ala.  642. 

72  Van   Wickle  v.    Landry,   29    La. 

Warvelle  Abstracts — 25 


386  ABSTRACTS    OF    TITI-K.  [§  358 

AVliere  the  statute  prescribes  formalities  relative  t(t  aekiiowled*'- 
meiit,  such  formalities  become  matters  of  substance,  and  their  due 
observanee  in  all  cases  necessary;''^  but  where  no  particular  mode 
is  jirescribed,  any  joint  adiou,  properly  ackimwlcdjzed,  will  prob- 
ably satisfy  the  requirement  of  the  \()liiii1;if\-  siuiuitin'c  ;iiid  assent 
of  the  wife.'''^  Where  the  statute  retpiires  an  express  waiver,  this 
may  be  shdwii  brietly,  in  all  ])roperly  executed  moi't^aires,  by  a  sim- 
ple recitiil  of  tlie  fact  ;  as, 

II (lint sii ad  ri(jhts  Wdii'cd, 

while  the  absence  of  any  woi'ds  indicative  of  such  intention  nia\'. 
with  ])ropriety,  be  also  noted. 

The  only  excejUion  to  the  rules  above  slated  is,  when  the  mort- 
gage is  given  to  secure  all  or  a  portion  of  the  unpaid  purchase 
money,  and  in  such  case  they  all  yield  lo  the  su|)erior  equity  of 
the  vendor's  licn7'^  lu  e.xaminalions  of  title  an  int|iiiry  ///  jxiis 
is  always  raised  by  mortgages  jiui-porting  to  be  executed  by  the 
husband  only,  as  well  as  when  the  joint  action  of  husband  and 
wife  is  shown,  but  unaccompanied  by  any  ex])ressiou  iiulicative 
of  release  or  waiver  of  homestead,  when  such  exju-essed  Avaivei- 
is  a  statutory  essential,  unless  the  mortgage  in  terms  pui'ports  To 
be  a  security  for  the  purchase  price. 

§  359.  Mortgage  of  After-acquired  Property.  As  to  the  effect 
of  deeds  and  mortgages  of  property  to  which  the  gi-antor  or 
mortgagor  has  no  present  legal  title,  and  which  contain  no  cove- 
nants or  other  words  creating  an  estoppel,  there  seems  to  be  much 
diversity  of  judicial  opinion,  though  the  authorities  are  in  the 
main  harmonious  in  declaring  equitable  interests  and  estates  to 
be  proper  subjects  of  conveyance  by  mortgage.'''^  The  question 
frequently  arises  in  regard  to  mortgages  of  incipient  or  inchoate 
rights  under  the  United   States   laud   laws,   and   such   mortgages 

74  Long    V.    Mostyn,    65    Ala.    543;  76  Forsyth    v.    Procr,    62    Ala.    443. 

Anderson  v.   Culbert,   55   Iowa,   233;  Local  statutes  must  decide  these  inat- 

rJriffin    V.    Proctor,    14    Bush    (Ky.),  ters;  the  laws  and  decisions  of  other 

571;    Sherrid   v.  Southwick,  43  Mich.  States  shed  but   little  light  on   ques- 

515;    Chambers  v.  Cox,  23   Kan.  393.  tions  of  this  character. 

76  Mash  V.  Eussell,  1  Lea   (Tenn.),  77  Fletcher  v.  Holmes,  32  Iml.  497; 

.-.43;   Balkum  v.  Wood,  58  Ala.   642;  Amphlet   v.    Hibbard,   29   Mich.    29S; 

Warner  v.   Crosby,  89   111.   320.     The  Thompson  v.  Lyman,  28  Wis.  266. 

fact  that  the  deed    recites  a  waiver  78  Bank  of  Greensboro  v.  Clapp,  76 

does    not    help    a    defective    acknowl-  N.  C.  482. 
edgment:  Best  v.  Gholson,  89  111.  465. 


§  360]  MORTGAGES.  387 

have  usually  been  upheld  by  the  State  courts,  ])articularly  when 
the  transaction  was  shown  to  be  one  of  good  faithj^  and,  when 
congress  has  imposed  no  positive  restrictions,  the  right  is  usually 
accorded  to  one  rightfully  in  possession  of  the  soil  to  make  any 
valid  contract  concerning  the  title  to  same  predicated  upon  the 
hypothesis  that  he  may  thereafter  lawfully  acquire  it.^©  So,  too, 
where  a  railroad  company  made  a  mortgage  on  the  property, 
"then  belonging  to  or  thereafter  to  be  acquired"  by  said  com- 
pany, with  covenants  for  further  reasonable  and  necessary  con- 
veyances as  to  subsequently  acquired  property,  it  was  held  that 
the  mortgage  became  a  valid  lien  upon  any  interest  in  real  as  well 
as  personal  estate  subsequently  acquired  by  the  company  for  the 
use  of  its  road,  even  superior  to  a  vendor's  lien  for  the  purchase 
money  of  the  lands.^^ 

Courts  of  equity  will  enforce  specific  execution  of  contracts,  and 
give  relief  in  numerous  cases  of  agreements  relating  to  lands  and 
things  in  action,  or  to  contingent  interests  or  expectancies,  upon 
the  maxim  that  equity  considers  that  done,  which,  being  agreed 
to  be  done,  ought  to  be  done,^^  and  in  furtherance  of  this  princi- 
ple, where  no  rule  of  law  is  infringed,  and  the  rights  of  third 
persons  are  not  prejudiced,  will,  in  proper  cases,  give  effect  to 
mortgages  of  subsequently  acquired  property.^^  The  theory  upon 
which  courts  of  equity  extend  the  lien  of  mortgages  to  after  ac- 
quired property  is,  that  the  mortgage,  though  inoperative  as  a 
present  conveyance,  is  yet  operative  as  an  executory  agreement 
and,  in  pursuance  of  such  theory,  the  lien  attaches  to  property  as 
soon  as  the  mortgagor  acquires  title  thereto.^* 

§  360.  Record  of  Mortgages.  Mortgages  come  within  the  pro- 
visions of  the  recording  acts,  and  impart  notice  in  like  manner  as 
deeds.*^     They  are  governed  in  this  respect  by  the  same  general 

79  Woodbury  v.  Dorman,  15  Minn.  Stevens  v.  E.  E.  Co.,  45  How.  (N. 
.338;  Wallace  v.  Wilson,  30  Mo.  335;       Y.   Pr.)    104. 

Clark  V.   Baker,    14   Cal.    (515;  Eeas-           83  Beall   v.    White,   94   U.    S.    382; 

oner  v.  Markley,  25  Kan.  635.  Eice  v.  Kelso,  57  Iowa,  115;  Hickson 

80  Lamb  v.  Davenport,  18  Wall.  Lumber  Co.  v.  Gay  Lumber  Co.,  150 
307.  N.  C.  282,  63  S.  E.  1045,  21  L.  E.  A. 

81  Pierce  v.  Milwaukee,  etc.,  E.  E.        (N.  S.)   843. 

Co.,  24  Wis.  551 ;   and  see  Morrill  v.  84  Roe,  Mitdioll  v.  Winslow,  2  Story 

Noyes,  56  Me.  458.     Such  mortgaj^os  630;   Maxwell  v.  Dental  Mfg.  Co.,  77 

from  an  exception  to  the  general  rule  Fcil.  9.''>8;   Bear  Lake,  etc.,  Irrig.  Co. 

that  property  not  in  existence  can  not  v.  Garland,  164  U.  S.  15,  41  Law  Ed. 

be  conveyed.  333. 

82  Sillers   v.    Lester,   48    Miss.   513;  86  Johnson  v.  Stagg,  2  Johns.  510; 


388  ABSTRACTS  OP   TITLE,  [§  360 

rules  as  affect  other  conveyances,  wliilo  in  several  States  they  are 
further  regulated  in  regard  to  priority,  etc.,  by  special  laws.  The 
registry  of  a  mortgage  is  notice  only  to  the  extent  of  the  sum 
specified  in  the  record,'^  and  of  the  property  therein  described,^'' 
and  intending  purchasers  ai-e  only  chargoal>le  with  notice  (tf  sucli 
facts  as  the  record  discloses,  and  not  of  indisclosed  intent.^^ 

If  a  mortgage  is  given  to  secure  an  ascertained  debt,  the  aniouMl 
of  the  debt  should  be  stated ;  and  if  it  is  intended  to  secure  a  debl 
not  ascertained,  such  data  should  be  given  respecting  it  as  will 
put  any  one  interested  in  the  inquiry'  upon  the  track  leading  to  a 
discovery.  If  it  is  given  to  secure  an  existing  or  future  liability, 
the  foundation  of  such  liability  should  be  set  forth.  Without 
this,  a  subsequent  iona  fide  purchaser,  with  no  actual  knowledge 
or  notice  of  the  facts,  is  not  chargeable  with  notice  of  the  amount 
secured.^®  So,  too,  a  subsequent  purchaser  or  mortgagee  may  rely 
upon  the  record  of  a  release  or  satisfaction  by  the  recoi-d  owner 
of  a  prior  mortgage,  in  the  absence  of  knowledge,  actual  or  con- 
structive, of  the  ownership  of  such  prior  mortgage  by  any  person 
other  than  such  record  owner.®" 

As  between  two  mortgages,  the  first  recorded  is  the  prior  lien,®^ 
and  where  a  mortgage  and  a  deed  of  conveyance  of  the  same 
property  are  made  at  the  same  time,  the  mortgage,  if  recorded 
first,  will  take  precedence  of  the  deed.®^ 

The  rights  of  the  mortgagee  are  fixed  when  he  places  his  mort- 
gage on  record,  and  the  subsequent  destruction  of  the  record,  will 

Rice  V.  Dewey,  54  Barb.  (N.  Y.)  455;  89  So  held  wliere  the  record  merely 

Hickman  v.  Perrin,  6  Coldw.   (Tenn.)  stated    that   the    grantor   had   on   the 

135;    Shannon   v.    Hall,   72   111.   354;  same  date  as  the  mortgage  made  his 

Van  Aken  v.  Gleason,  34  Mich.  477.  promissory   note,  payable,   etc.,  with- 

86  Beekman  V.  Frost,  18  Johns.  544;  out  giving  the  amount:  Bullock  v. 
North  V.  Beldeu,  13  Conn.  376.  Even  Battenhousen,  108  111.  28;  Hart  v, 
though  there  has  been  a  mistake  in  Chalker,  14  Conn.  77.  But  see  North 
recording:  Bullock  v.  Battenhousen,  v.  Knowlton,  23  Fed.  Rep.  163,  where 
108  111.  28;  Lowry  v.  Davis,  69  Ind.  en  semhle  a  contrary  doctrine  is  in- 
589.     But  it  would  seem  that  the  re-  dicated. 

(•order  would  be  liable  in  damages  to  90  Friend   v.   Ward,   126  Wis.   291, 

any  one  who  might  suffer  from  the  104  N.  W.  997,  1  L.  R.  A.   (N.  S.) 

error:  Lowry  v.  Davis,  69  Ind.  589.  891. 

87  Simmons  v.  Fuller,  17  Minn.  485 ;  91  Ripley  v.  Harris,  3  Biss.  199; 
Galway  v.  Malchou,  5  Neb.  285 ;  Odd  Fellows  Sav.  Bank  v.  Banton,  46 
White  V.  McGarry,  2  Flip.  (C.  Ct.)  Cal.  603;  Van  Aken  v.  Gleason,  34 
572.  Mich.  477. 

88Disque  v.  Wright,  49  Iowa,  538;  92  Odgen  v.  Walkers,  12  Kan,  282. 

Galway  v.  Malchou,  5  Neb.  285;  Her- 
man V.  Deming,  44  Conn.  124. 


§  362]  MORTGAGES.  389 

not,  it  seems,  extinguish  or  destroy  the  notice  afforded  by  regis- 
tration, nor  injuriously  affect  the  rights  of  the  mortgagee,®*  while 
as  between  the  original  parties,^  and  their  heirs,®^  the  mortgage 
will  still  be  valid  and  effective  although  unrecorded. 

§  361.  Notice  Imparted  from  Possession.    If  the  real  owner  of 

property  allows  it  to  stand  recorded  in  the  name  of  another,  by 
a  title  translative  of  property,  he  puts  it  in  the  power  of  that 
other  to  create  a  valid  mortgage  on  it ;  ®^  yet  one  who  takes  a 
mortgage  from  the  record  owner  of  lands,  which  are  in  the  no- 
torious and  exclusive  possession  of  another,  is  bound  to  inquire  as 
to  the  claims  or  interest  of  the  person  so  in  possession,  and  is 
chargeable  with  whatever  he  might  have  learned  by  reasonable 
inquiry,  notwithstanding  he  has  searched  the  records  and  found 
no  deed.®''  Hence,  it  is  always  well  for  counsel,  in  framing  an 
opinion  of  title,  to  specifically  call  attention  to  the  rights  of  per- 
sons in  possession  if  other  than  the  record  owner. 

§  362.  Re-records.  A  re-record  of  a  mortgage  is  treated  tne 
same  as  a  re-record  of  a  deed;  bare  mention  is  sufficient  provided 
the  two  records  show  a  literal  conformity,  otherwise  they  are  to  be 
regarded  as  independent  instruments.  Re-records  of  mortgages, 
like  re-records  of  deeds,  are  frequently  made  to  correct  errors  of 
the  former  record,  and  in  every  instance  the  two  should  be  care- 
fully compared. 

When  it  satisfactorily  appears  that  the  instrument  under  con- 
sideration is  a  re-record  it  should  be  placed  immediately  after  the 
abstract  of  the  first  record,  whenever  such  a  course  is  practicable, 
and  mav  be  shown  somewhat  as  follows : 


Robert  Dennis  and 

Mortgage. 

Frances,  his  wife, 

Dated,  etc. 

to 

'        *          * 

# 

* 

* 

David  K.  Tone. 

*          * 

* 

# 

* 

Apparently  a  re-record  of  the  preceding  mortgage,  signed  hy 
both  Dennis  and  wife,  with  an  additional  certificate  of  acknowl- 
edgment of  hoth,  dated  June  2,  1898. 

98  Shannon  v.  Hall,  72  111.  354.  604;    Shepard    v.   Shepard,   36  Mieb. 

94Cavanaugh  v.  Peterson,  47  Tex.  173. 

197.  97  School    District     v.     Taylor,     10 

96  McLaughlin    v.    Ihmsen,    85    Pa.  Kan.  287 ;  and  see  Parsell  v.  Thayer. 

St.   364.  39  Mich.  467. 

96  Hunter  v.  Buckner,  29  La.  Ann. 


390  ABSTRACTS   OF    TITLE.  [§  363 

§  363.  Trust  Deeds.  Trust  deeds  in  the  nature  of  a  mortgage 
■vvero  om-e  in  veiy  common  use,  but  the  changes  produced  by  the 
abolition  of  the  common  law  doctrine  of  uses  and  trusts  and 
the  limitation  of  powers,  have  now  confined  them  to  a  few  States, 
and  even  in  those  States,  under  the  influence  of  recent  legislation, 
mortgages  are  to  some  extent  taking  their  place.  In  general  effect 
a  trust  deed  of  the  character  now  under  consideration  is  the  same 
as  a  mortgage,  and  like  a  mortgage  is,  in  equity,  a  mere  security 
for  the  payment  of  money,  or  for  the  performance  of  certain  un- 
dertakings by  the  grantor.  It  is  simply  an  incident  to  the  debt 
which  it  secures,  and  upon  which  it  depends.^^ 

The  same  general  principles  are  applicable  to  this  class  of  con- 
veyances as  to  other  deeds  intended  only  as  security,  and  the  chief 
feature  which  distinguishes  them  from  mortgages  is,  that  here  the 
conveyance  is  not  made  to  the  creditor  direct,  but  to  a  trustee  Avho 
holds  a  naked  trust  for  the  benefit  of  the  legal  holder  of  the  evi- 
dence of  the  indebtedness,  which,  if  negotiable,  passes  from  hand 
to  hand  as  other  commercial  paper,  the  incident  of  the  lien  fol- 
lowing the  note  to  the  hands  of  the  last  indorsee,  who,  on  default, 
may  call  upon  the  trustee  to  execute  the  trust  according  to  its 
terms. 

The  grantor  in  a  trust  deed,  in  declaring  the  trust,  may  mold 
and  give  it  any  shape  he  chooses,  and  he  may  provide  for  the 
appointment  of  a  successor  or  successors  to  the  trustee  upon  such 
terms  as  he  may  choose  to  impose,  but  Avhen  imposed  the  terms 
must  be  pursued,  to  render  the  acts  of  the  successor  valid.  It  is 
alone  by  the  force  of  the  powers  delegated  by  the  deed  that  the 
trustee  can  perform  any  act  with  reference  to  the  trust  property, 
and  in  executing  those  powers  he  must  strictly  pursue  them,  or 
his  acts  ■will  be  void.^^ 

An  unexecuted  trust,  if  still  an  existing  lien,  is  treated  in  the 
same  manner  as  mortgages  under  like  conditions.  The  abstract 
should  show  the  trustee ;  the  successor  in  trust,  if  any  is  appointed ; 
the  cestui  que  trust  if  named ;  and  a  general  description  of  the  in- 
debtedness as  in  case  of  ordinary  mortgages.^  An  illustration  is 
herewith  given  : 

9ft  Life  Ins.  Co.  v.  White,  106  111.  to    make    the    notes    payable    to    the 

67.  maker 's  own  order  and  after  he  has 

99  Equitable    Trust    Co.    v.    Fisher,  endorsed  them  they  then  pass  by  mere 

106  111.   189;   Ellis  v.  R.  R.   Co.,  107  delivery.     In  such  case  the  fact  should 

Mass.  12.  be  noticed  in  the  abstract. 

1  It  is  now  a  very  general  practice 


§  363]  MORTGAGES.  391 


James  Johnson 

to 

Aniericus  B.  Melville, 

Tmstee. 


Trust  Deed. 

Dated  June  1,  1882. 

Recorded  June  5,  1882. 

Book  129.     Page  510. 

To  secure  the  payment  of  $1,000 
and  interest  thereon  at  eight  per  cent,  per  annum,  in  two  years 
from  the  date  hereof,  evidenced  hy  said  first  party's  one  certain 
promissory  note,  hearing  even  date  herewith,  and  payable  to  the 
order  of  George  W.  Smith  for,  payable  to  his  own  order  and  hy 
him  endorsed). 

Conveys  land,  etc.  [here  set  out  the  description  of  the  property 
conveyed]  in  trust  and  upon  the  conditions  therein  specified  and 
enumerated. 

If  a  power  of  sale  is  given  insert  a  brief  mention  thereof  imme- 
diately following  the  above.     Thus : 

Power  of  sale  given  on  default  after  thirty  days'  notice. 

Then  continue  as  follows : 

Homestead  rights  waived. 

Monroe  A.  Fulkerson,  successor  in  trust. 

Acknowledged  June  1,  1882. 

If  followed  by  foreclosure  in  pursuance  of  the  power,  and  the 
trustee's  deed  appears  in  the  same  examination,  insert  the  power 
of  sale  in  full  as  found  in  the  instrument,  immediately  after  the 
description  of  the  property,  thus : 

In  trust,  nevertheless,  that  in  case  of  defaidt  in  the  payment  of 
the  note  secured  hereby,  or  any  part  thereof,  according  to  the 
tenor  and  effect  of  said  note,  or  in  case  of  waste  or  non-pa\jmmtt 
of  taxes  or  assessments,  or  neglect  to  procure  or  renew  insurance 
as  hereinafter  provided,  or  in  case  'of  the  breach  of  any  of  the 
covenants  or  agreements  herein  mentioned,  then  it  shall  be  lawful 
for  the  sajid  party  of  the  second  part  or  his  s^iccessor  in  trust,  on 
application  of  the  legal  holder  of  said  promissory  note  (or  either 
of  them),  to  enter  upon,  possess,  hold  and  enjoy  the  above  granted 
premises,  and  either  with  or  without  such  entry  to  sell  and  dispose 
of  said  premises,  and  all  right,  title,  benefit  and  equity  of  redemp- 
tion of  said  party  of  the  first  part,  his  heirs  and  assigns  therein, 


392  ABSTRACTS   OF   TITLE.  [§  363 

(//  public  auctian,  at  the  front  dour  of  the  court  house  in  Chicago, 
lllinais,  or  an  said  premises,  or  any  part  thereof,  as  may  he  speci- 
jicld  in  the  notice  of  such  sale,  for  the  highest  and  best  price  the 
same  will  bring  in  cash,  thirty  days'  previous  notice  of  such  sale 
having  been  given  by  puhlication  once  in  each  week,  for  four  su/i- 
cessive  weeks,  in  the  Chicago  Legal  News,  or  in  any  newspaper  at 
that  time  published  in  said  city  of  Chicago,  and  to  make,  execute 
and  deliver  to  the  purchaser  or  purchasers  at  such  sale,  good  and 
sufjlcient  deed  or  deeds  of  conveyance  for  the  premises  sold. 
*  *  *  Which  sale  or  sales  so  made  shall  be  a  perpetual 
bar,  both  in  law  and  equity,  against  the  said  party  of  the  first 
part,  his  heirs  and  assigns  and  all  other  persons  claiming  the 
premises  aforesaid,  or  any  part  thereof,  by,  from,  through  or  under 
said  party  of  the  first  part  (or  any  of  them). 

Second  party,  with  or  without  re-advertising,  is  hereby  author- 
ized and  empowered  to  postpone  or  adjourn  said  sale  from  time  to 
time  at  his  discretion;  and  also  to  sell  the  said  premises,  entire, 
without  division,  or  in  parcels,  as  he  may  prefer  or  think  best. 

It  is  agreed  that  in  case  of  default  in  any  of  said  payments  of 
principal  or  interest,  according  to  the  tenor  and  effect  of  said  note, 
or  any  part  thereof,  or  of  a  breach  of  any  of  the  covenants  or 
agreements  herein,  by  the  party  of  the  first  part,  his  executors, 
administrators  or  assig7is,  then,  and  in  that  case,  the  whole  of  said 
principal  sum  hereby  secured,  and  the  interest  thereon  to  the  time 
of  sale,  may  at  once,  at  the  option  (without  notice  thereof  to  said 
party  of  the  first  part,  his  heirs,  assigns  or  legal  representatives) 
of  the  legal  holder  thereof,  become  due  and  payable,  and  the  said 
premises  be  sold  in  the  manner  and  with  the  same  effect,  as  if  the 
said  indebtedness  had  matured. 

First  party  covenants  that  in  case  of  a  sale  and  conveyance  as 
aforesaid,  of  sadd  premises,  any  deed  or  deeds  of  conveyance  made 
in  pursuance  of  such  sale  shall  be  pritna  facie  evidence  of  the  due 
compliance  with  and  performance  of  the  terms,  conditions  and 
requirements  of  this  deed  of  trust,  by  second  party,  or  his  suc- 
cessor in  trust  aforesaid,  in  advertising  and  making  such  sale  and 
conveyance,  to  the  extent  of  the  recitals  contained  in  such  deed 
or  deeds. 

In  ancient  deeds  as  great  a  degree  of  detail  as  shown  in  the 
foregoing  may  not  be  necessary,  but,  in  any  event,  sufficient  should 
be  shown  to  enable  counsel  to  pass  on  the  legality  of  the  convey- 
ance. 


§  364]  MORTGAGES.  393 

§  364.  Power  of  Sale.  The  power  of  sale  contained  in  a  deed 
of  trust  or  mortgage  must  be  strictly  pursued,^  and  the  utmost 
fairness  must  be  observed  in  its  execution;  but  such  strictness 
and  literal  compliance  should  not  be  exacted  as  would  destroy 
the  power.^  Where  title  is  claimed  through  a  trustee  or  mort- 
gagee acting  under  a  power,  a  reasonable  degree  of  detail  is 
necessary  in  the  abstract,  which  should  show  sufficient  of  the  pro- 
ceedings, as  evidenced  by  the  trustee's  or  mortgagee's  deed,  to 
indicate  a  substantial  compliance  with  every  essential  requisite. 
When  permitted  by  statute,  the  sale  of  a  mortgaged  estate,  made 
in  pursuance  of  a  valid  power  given  by  the  owner,  vests  in  the 
purchaser  an  estate  in  fee,  free  from  the  original  condition  and 
from  any  right  of  redemption,*  and  the  power,  being  coupled  with 
an  interest,  is  irrevocable,  and  hence  may  be  exercised  even  after 
the  death  of  the  mortgagor.^ 

Though  one  who  undertakes  to  execute  a  power  is  bound  to  a 
strict  compliance  therewith,  as  well  as  the  observance  of  good 
faith,®  and  a  suitable  regard  for  his  principal,  yet  a  dereliction  in 
this  respect  will  not  usually  affect  a  purchaser  in  good  faith,  who, 
being  a  stranger  to  his  proceedings  and  finding  them  all  correct 
in  form,  takes  the  property ;  "^  yet  as  the  payment  of  the  debt  se- 
cured by  the  trust  deed  or  mortgage  defeats  the  power  of  sale,  a 
purchaser  at  a  sale  made  under  such  power  must  see  to  it  that 
the  grantor  in  the  deed  or  mortgage  is  in  default,  and  that  some 
part  of  the  debt  is  due  and  unpaid.^ 

The  omission  of  the  power  from  a  trust  deed  or  mortgage 
merely  limits  the  mode  of  foreclosure  to  bill  in  equity,^  while  its 
insertion  does  not  oust  the  jurisdiction  of  a  court  of  equity,  nor 
preclude  a  party  from  resorting  to  that  tribunal.  It  is  cumula- 
tive only.^®     In  its  general  nature  it  is  a  power  coupled  with  an 

2  Cranston  v.  Crane,  97  Mass.  459.  6  if  a  sale  is  made  by  a  mortgagee 

3  Walter  v.  Arnold,  71  111.  350.  under  a  power  in  a  mortgage,  not 
Parties  to  a  mortgage  may,  by  stip-  in  good  faith,  but  in  fact  for  him- 
ulation,  regulate  the  terms  of  a  power  self,  to  whom  the  purchaser  conveys, 
of  sale  of  the  premises  by  the  mort-  the  sale  is  not  void,  but  only  void- 
gagee;  and  the  courts  wUl  not  inter-  able  in  equity,  and  it  may  be  set  aside 
fere  to  control  the  right,  in  the  ab-  while  the  title  remains  in  the  mort- 
sence  of  fraud,  or  of  some  statutory  gagee,  but  not  after  transfer  to  a 
regulations  on  the  subject:  Elliott  feo?io  ^e  purchaser :  Gibbons  v.  Hoag, 
V.  Wood,  45  N.  Y.  71.  95  111.  45. 

4  Kinsley  v.  Ames,  2  Met.  29.  7  Montague  v.  Dawes,  14  Allen,  369. 
SBerger  v.  Bennett,  1  Caine's  Cas.  «  Ventres  v.  Cobb,  105  111.  33. 

(N.  Y.)  1.     Local  statutes  may,  how-  8  Cowles  v.  Marble,  37  Mich.  158. 

ever,   serve   to   modify  the  statement  10  McAllister  v.  Plant,  54  Miss.  106. 

of  the  text. 


394  ABSTRACTS   OP    TITLE.  [§  364 

interest,  is  irrovofiihlo.  appeiuhiiit  Id  llu'  land,  and  passes  by  an 
assignment  of  the  mortgage  and  sei-nred  debt ;  "  it  is  not  impaired 
by  the  death  of  the  mortgagor,  nor  by  lapse  of  time,  if  not  un- 
reasonable, in  closing  the  sale  made  under  it;  and  covers  the  equity 
of  redemption,  not  only  of  a  husband,  but  also  that  of  his  Avifo 
surviving  him.^^ 

At  the  present  time  power  of  sale  mortgages  are  infrecjuent  and 
in  many  States  no  foreclosure  is  permitted  except  in  equity.  But 
even  in  these  States  many  examples  of  this  species  of  security 
will  be  found  upon  the  records  and  in  the  past  history  of  titles, 
and  when  so  found  should  be  treated  as  above  indicated. 

§  365.  Assignment.  The  interest  of  a  mortgagee,  whether  re- 
garded as  a  lien  or  an  estate,  is  assignable  in  laAv  by  a  proper 
instrument  purporting  to  convey  the  same,  while  the  assignment 
of  the  notes  secured  by  the  mortgage  operates  in  equity  as  an  as- 
signment of  the  mortgage  itself. ^^  In  the  latter  case,  the  assign- 
ment of  the  debt  carries  with  it  the  security  for  the  debt,  and 
ordinarily  whoever  owns  the  debt  is  likewise  the  owner  of  the 
mortgage.^*  Assignments  of  mortgages,  however,  are  usually  made 
by  an  instrument  in  writing  and  under  seal,  which,  when  recorded, 
affords  constructive  notice  of  the  rights  of  the  assignee  to  all  per- 
sons, as  against  any  subsequent  acts  of  the  mortgagee  affecting 
the  mortgage,  and  protects  as  Avell  against  an  uiuiuthori/,ed  dis- 
charge as  against  a  subse((uent  assignment  by  the  mnrtgagec^^ 

11  McGuire  v.  Van  Pelt,  55  Ala.  it  to  save  his  estate,  and  he  does  pay 
M4;  Strother  v.  Law,  54  111.  413;  it,  the  payment  will  be  presiimpd  to 
Hyde  v.  Warren,  46  Miss.  13;  Brown  be  made  for  that  purpose,  and  in 
V.  Delaney,  22  Minn.  349.  such  case  no  assignment  of  the  mort- 

12  Strother  v.  Law,  54  111.  413.  gage    to    the    person    paying    it,    nor 

13  Holmes  v.  McGinty,  44  Miss.  proof  of  an  intention  on  his  part  to 
94;  Moore  v.  Cornell,  68  Penn.  St.  keep  it  alive,  is  necessary  to  give  him 
322;  Blake  v.  Williams,  3  N.  H.  39;  the  benefit  of  it:  Walker  v.  King,  44 
Croft  V.  Bunster,  9  Wis.  503;  Pot-  Vt.  601;  and  in  like  manner  a  party 
ter  V.  Stevens,  40  Mo.  229.  An  as-  paying  a  decree  of  foreclosure  be- 
sjgnmont  in  law  is  not  recognized  in  comes  invested  with  the  rights  of  the 
some  States.  mortgagee  and  the  assignee  in  equity 

14  Kurtz  V.  Sponable,  6  Kan.  395 ;  of  the  mortgage ;  although  in  this  case 
Nelson  v.  Ferris,  30  Mich.  497;  the  mortgage  is  in  fact  paid,  yet 
Preston  v.  Morris  Case  &  Co.,  42  equity  will  require  it  to  subsist  until 
Iowa,  549;  Mulford  v.  Peterson,  35  every  party  who  owes  a  duty  under 
N.  J.  L.  129;  Conner  v.  Banks,  18  the  mortgage  shall  have  discharged 
Ala.  42;  Bell  v.  Simpson,  75  Mo.  it:  Wheeler  v.  Willard,  44  Vt.  640. 
485.  Where  a  party  is  so  related  to  16  Viele  v.  Judson,  82  N.  Y.  32; 
a  mortgage  that  he  is  not  personally  Stein  v.  Sullivan,  31  N.  J.  Eq.  409; 
liable  upon  it,  but  is  obliged  to  pay  Torrey  v.  Deavitt,  53  Vt.  331. 


§  366]  MORTGAGES.  395 

The  law  does  not,  as  a  rule,  require  the  assignment  to  be  re- 
corded, as  essential  to  its  validity,  nor  is  it  necessary  for  the 
purposes  of  foreclosure ;  and  assignments  are  exempted  from  the 
operation  of  the  recording  laws  of  many  of  the  States.  With  re- 
spect to  the  necessity  of  registration  for  priority  of  title,  the  same 
general  rule  prevails  between  different  assignees  of  a  mortgage 
as  between  grantees  in  ordinary  deeds, ^^  and  a  release  by  the 
mortgagee,  no  assignment  appearing  of  record,  will  effectually 
divest  the  lien,  notwithstanding  an  assignment  has  in  fact  been 
made.^'''  It  will  be  seen,  therefore,  where  an  assignment  is  found 
on  the  records  its  essential  substance  should  be  shown  in  the  ab- 
stract as  the  record  of  a  mortgage  affords  constructive  notice  only 
of  its  existence  and  the  ownership  thereof  by  the  mortgagee  named 
therein.^8 

In  a  few  States,  a  mortgage  is  not  assignable,  either  by  the  stat- 
ute or  by  the  common  law ;  the  assignment  of  the  note  carries  the 
mortgage  with  it,  but  only  in  equity,  and  trust  deeds  given  as 
security  for  a  loan,  being  regarded  in  the  nature  of  mortgages, 
stand  upon  the  same  footing  as  regards  assignability.^^ 

§  366.  Operation  and  Effect  of  Assignments.    Though  there  are 

not  wanting  authoritative  decisions  to  the  contrary,  yet  the  bet- 
ter and  more  generally  received  doctrine  seems  to  be,  that  an 
assignment  of  a  mortgage  is  to  be  regarded  only  as  the  transfer 
of  a  mere  chose  in  action,  and  not  an  interest  in  lands,  the  debt 
being  considered  as  the  principal  and  the  land,  or  security,  only 
the  incident ;  ^'^  and  that  the  assignee  takes  it  charged  with  the 
notice  which  his  assignor  had  of  prior  incumbrances,  and  subject 
not  only  to  any  latent  equities  that  exist  in  favor  of  the  mort- 
gagor, but  also  subject  to  equities  in  favor  of  third  persons.^^ 

16  Wiley  V.  "Williamson,  68  Me.  71;  104  N.  W.  997,  1  L.  E.  A.    (N,  S.) 

Trust  Co.  V.  Shaw,  5  Sawyer  (C.  Ct.),  891. 

a36;    McClure    v.    Burris,    16    Iowa,  19  Olds   v.   Cuuimings,   31   111.   188; 

591;    Torrey  v.  Deavitt,  53  Vt.   331;  Walker  v.  Dement,  42  111.  272;  BaDy 

Bacon  v.  Van  Schoonhover,  87  N.  Y.  v.  Smith,  14  Ohio  St.  396. 

446.  20  Delano  v.   Bennett,  90   111.  533 


17  Mitchell  v.  Burnham,  44  Me.  303 
Bank  v.  Anderson,  14  Iowa,  544 
Johnson  v.  Carpenter,  7  Minn.  176 
Union  College  v.  Wheeler,  61  N.  Y 
88;    Baldwin   v.    Sager,   70   lU.    505; 


Hitchcock  V.  Merrick,  18  Wis.  357 
Paige  V.  Chapman,  58  N.  H,  333 
Bennett  v.  Saloman,  6  Cal.  134. 

21  Sims  V.  Hammond,  33  Iowa,  368; 
Mason    v.    Ainsworth,    58    111.    163; 


Ayers  v.  Hays,  60   Ind.  452;   Swartz       Schofer  v.  Eeilly,  50  N.  Y.  61;  Crane 

V.   Leist,   13  Ohio   St.   419.  v.   Turner,    67   N.    Y.   437;    Coffin   v. 

18  Friend   v.    Ward,    126   Wis.    291,       Taylor,  16  111.  457;  Olds  v.  Cummings, 


396  ABSTRACTS   OF   TITLE,  [§  367 

§  367.  Formal  Requisites  of  Assignments.  Tliough  the  earlier 
decisions  hold  that  the  interest  of  a  mortgagee  may  be  transferred 
or  conveyed  by  the  same  form  of  deeds  by  Avhieh  the  owner  of 
the  legal  estate  can  convey  it,^^  the  current  of  later  cases  pro- 
nounces a  contrary  doctrine.  The  mortgagee's  interest,  being  a 
mere  ciiattel,  is  inseparable  from  the  debt  it  is  given  to  secure,^^ 
and,  not  constituting  an  estate  or  interest  in  the  land,  will  not 
pass  by  any  conveyance  thereof.  Hence  a  deed  of  all  the  gran- 
tor's "estate,  title  and  interest"  in  the  mortgaged  premises,^*  or  a 
conveyance  of  all  his  "lands,  tenements  and  hereditaments,"^^ 
will  not  operate  as  an  assignment  of  a  mortgage;  and  generally, 
any  conveyance  or  attempted  convej-ance  of  the  mortgagee's  in- 
terest before  foreclosure,  not  accompanied  by  a  transfer  of  the 
debt  secured,  is  a  nullity.''^ 

The  interest  owned  by  the  mortgagee  has  reference  solely  to 
the  mortgage  debt,  and  any  instrument  Avhich  describes  the  par- 
ties and  the  indebtedness,  and  sufficiently  identifies  the  mortgage, 
will  be  effective  as  an  assignment  without  reference  to  the  mort- 
gaged property,  while  the  instrument,  in  form,  should  purport  to 
be  a  transfer  of  the  mortgage  itself  and  of  the  debt  thereby 
secured,  and  not  of  the  land  pledged  for  the  payment  of  such 
debt.27 

As  before  remarked,  where  an  assignment  is  found  on  the  rec- 
ords it  should  be  shown  in  the  abstract,  and  particularly  is  this 
true  when  followed  by  a  release  or  discharge  by  the  assignee.  The 
following  is  a  sufficient  showing  of  essential  facts: 

31  111.  188.     The  text  slates  the  gen-  v.  Daniels,  11  N.  H.  274.     But  if  the 

eral    rule    but   the    statute,    in    some  mortgagee  is  in  possession  under  his 

States,   has   changed  this   rule   so   as  mortgage    his    conveyance,    while    it 

to  cut  off  latent  equities.  would   be   ineffectual  as   regards    the 

22  Welch  V.  Priest,  8  Allen  (Mass.),  title,  might  yet  be  sufficient  to  confer 
165;  Cutler  v.  Davenport,  1  Pick.  81.  on  his  grantee  a  right  of  possession. 
And  see  Connor  v.  Whitmore,  62  Me.  Welsh  v.  Philips,  54  Ala.  309. 

186;     Stewart    v.    Barrow,    7    Bush  27  When  the  mortgage  is  regarded 

(Ky.),   368.     But    this    is   when    the  as  a  mere   incident  to  the   debt  this 

legal  estate  passes  to  the  mortgagee.  would    be    sufficient,   but   more,   per- 

23  Mack  V.  Wetzler,  39  Cal.  247 ;  haps,  would  be  required  in  States 
Seckler  v.  Delfs,  25  Kan.  159;  Trim  where  the  mortgagee  holds  the  legal 
V.  Marsh,  54  N.  Y.  599.  title  and  estate.     In  such   States  an 

24  Swan  V.  Yaple,  35  Iowa,  248;  assignment  of  the  mortgage,  in 
Runyan  v.  Messercan,  11  Johns.  534;  terms  which  does  not  profess  to  act 
Delano  v.  Bennet,  90  111.  533.  upon    the   land,    would   not   pass   the 

26  Mack  v.  Wetzlar,  39  Cal.  247.  mortgagee 's   estate   in  the  land,   but 

26  Delano  v.   Bennett,  90   111.   533;  only    the    security    it    affords    to   the 

Swan   V.   Yaple,  3  Iowa,  248;    John-  holder     of     the     debt:     Williams     v. 

son   V.    Corbett,   29   Ind.   59;    Ellison  Teachey,  85  N.  C.  402. 


§  368]  MORTGAGES.  397 

Thomas  Jones  1      Assignment. 

to  I    Dated,  etc. 

W.  H.    Seifried.  j         »  *  *  * 

Assigns,  transfers  and  sets  over  to  second  party  a  certain  mort- 
gage dated,  etc.  [here  set  out  description  of  mortgage]  together 
with  the  note  or  obligation  therein  described  and  the  money  due 
thereon  with  interest. 

First  party  constitutes  second  party  his  true  and  lawful  at- 
torney irrevocably,  to  take  all  lawful  means  for  the  recovery  of 
the  debt  secured  by  said  mortgage  and  the  interest  thereon  and 
in  case  of  payment  to  release  and  discharge  the  same  as  fully 
as  he,  said  first  party,  might  or  could  do  if  '^ these  presents*'  were 
not  made. 

Acknowledgment. 

§  368.  Release  and  Satisfaction.  Where  no  release  or  satisfac- 
tion of  a  mortgage  appears  of  record,  the  law  will  presume  a  pay- 
ment of  the  debt  it  was  given  to  secure,  where  the  mortgagee  has 
failed  to  exercise  his  right  of  foreclosure  for  the  period  of 
twenty  years  ^8  after  the  maturity  of  the  debt,  and  the  mortgage 
will  cease  to  be  a  lien  after  the  expiration  of  that  period.^^  The 
mortgage  may  also  be  satisfied  by  foreclosure,  but  the  term  "sat- 
isfaction" as  ordinarily  used,  refers  to  a  specific  acknowledgment 
of  payment  of  the  debt  and  discharge  of  the  lien,  evidenced  hy 
some  written  instrument.  Though  the  terms  "release"  and  "sat- 
isfaction" are  used  interchangeably,  there  is  yet  a  distinction  be- 
tween them.  A  satisfaction  implies  a  payment  of  the  debt,  and 
ipso  facto  an  extinguishment  of  the  lien,  whereas  a  release  or 
discharge  maj'  relieve  the  land  from  the  burden  of  the  debt  with- 
out in  the  least  impairing  its  legal  efficacy  as  a  personal  claim 
against  the  debtor.^** 

88  Goodwin    v,    Baldwin,    59    Ala.  lock    v.    Maison,  41    III.    516;    Locke 

127;  Lawrence  v.  Ball,  14  N.  Y.  477;  v.  Caldwell,  91  111.  417;   and  consult 

Emory  v.  Keighan,  88  111.  482 ;  How-  4  Kent 's  Com.  189 ;  Jackson  v.  Wood, 

land  V.  Shurtleff,  2  Met.  (Mass.)  26.  12    Johns.    242.      In    some    States    a 

The   presumption   is   disputable,   how-  shorter  limitation  period  is  provided, 

ever:     Cheever    v.    Pcrley,    11    Allen  Thus,  in  Illinois,  the  lien  ceases  at  the 

(Mass.),  588;   Delaney  v.   Brunnette,  expiration  of  ten  years  after  matur- 

62  Wis.  615.  ity.      But    even    in    these    States,    as 

29  This  follows   as   a   result   of   the  between  the  parties,  the  lien  may  be 

statute     of     limitations.        See     also  extended   by   payments   until   the   ex- 

Blackwell  v.  Barnett,  52  Tex.  326;  piration  of  the  full  limitation  period. 
Whitney  v.  French,  25  Vt.  663;   Pol-  30  Adington  v.  Hefner,  81  111.  341. 


398  ABSTRACTS    OF   TITLE.  [§  369 

§  369.  Form  and  Requisites  of  Release.  The  general  requisites 
of  a  reh'ase  of  mort^-age  diflVr  somewhat,  accordiiig  lo  Ihc  light 
ill  wliich  it  is  to  ho  rogai'ded.  Where  the  nioi-tgage  retains  its 
eomnion  law  charaeter  oi'  a  eonveyanee  of  the  legal  estate,  a  deed 
under  seal  with  u\){  words  of  eonveyanee  will  be  necessary  to 
revest  the  title  of  the  mortgagor,  which  may  be  effected  by  a  deed 
iif  release  and  (luit-claim;  ^^  but  where  it  is  regarded  only  as  a 
lieu  or  security,  any  instrument  show'ing  an  intention  to  relieve 
the  land  from  the  bui-den,  or  acknowledging  payment  or  satisfac- 
tion of  the  debt  secured  by  the  mortgage,  will  be  sufficient  to  divest 
the  lien  and  restore  the  land  to  its  original  condition. ^'^  The  lat- 
ter instrument  is  that  now  generally  used,  and,  as  a  rule,  it  is 
recjuired  by  statute  to  be  executed  by  the  mortgagee  or  his  as- 
signee, and  acknowledged  or  proved  in  the  manner  provided  by 
law  to  entitle  conveyances  to  recoi'd,  and  must  specify  that  such 
mortgage  has  been  paid,  or  otherwise  satisfied  or  discharged.  No 
other  formalities  seem  necessary,  and  such  certificate,  popularly 
known  as  a  "satisfaction  piece,"  has  the  same  effect  as  the  old 
deed  of  release.  In  a  few*  States,  a  modified  form  of  a  release  deed 
is  still  preserved,  though  its  operation  and  effect  is  almost  iden- 
tical with  the  certificate  of  payment,  or  "satisfaction  piece"  of 
the  other  States.  It  is  customary,  but  not  necessary,  to  describe 
the  property,  and,  except  in  case  of  partial  releases,  such  descrip- 
tion has  no  other  effect  than  to  give  greater  certainty  to  the  in- 
strument in  the  identification  of  the  land.  A  release  or  satisfac- 
tion immediately  follows  the  mortgage  it  affects,  and  may  be  shown 
in  brief  terms.33    Thus: 


Millard  F.  Riggle 

to 

Jatnes  EnrUjlit. 


Release. 

Dated,  etc. 

****** 

Consideration,  $1.00,  etc.^^ 


Releases   all   right,   title,  interest,   etc.,  acquired   hy  mortgage, 
rrrrvtcd  hjf  second  pttrt]!  to  frst  party,  henrinrj  date  April  1,  ISSO, 

31  Waters  v.   Jones,   20   Iowa,  363 ;  eonling     acts,     and     one     who     buys 

Allard    v.    Lane,    18   Me.    9;    Perkins  or  advances  money  to  be  secured  by 

V.    Pitts,    11    Mass.    125;    and   see    2  mortgage  on  the  premises  is  a   bona 

.Tones  on  Mortgages   (2d  Ed.),   §972  fide   purchaser   within   the  provisions 

et  xeq.  of  said  acts:     Bacon  v.  Van  Schoon- 

32Headley    v.    Gaundry,    41    Barb.  hoven,   87   N.   Y.   44G.      It  takes   the 

279 ;   Thornton  v.  Irwin,  43  Mo.  153 ;  place   of   a   release :      Ibid.,   and   .see 

Lucas   V.   Harris,   20   111.    165.  Merchant  v.  Woods,  27  Minn.  396. 

38  A  satisfaction  piece  is  a  convey-  **  The     original     clause     usually 

anee  within   the  meaning  of   the  re-  recites    "and    other    good    and    val- 


§  370]  MORTGAGES.  399 

and  recorded  April  2,  1880,  in  hook  306  of  Records,  page  597, 
to  the  premises  therein  described  (describing  same)  or,  to  the 
premises  therein  described  as  follows,  etc.  [Where  the  release  is 
partial;  to  so  ynuch  of  the  premises  therein  mentioned  as  is  de- 
scribed as  follows:] 
Acknowledgment. 

This  is  an  abstract  of  the  release  deed  in  use  in  Illinois.  A 
satisfaction  or  certificate  of  payment  will  require  only  slightly 
different  treatment.     The  following  is  a  suggestion : 

William  Smith  1      Satisfaction  of  Mortgage. 

to  I     Dated,  Nov.  1,  1920. 

Alfred  Jones.  j     Recorded,  etc. 

Acknoivledges  satisfaction  and  payment  in  full  of  a  certain 
mortgage  bearing  date,  etc.  [here  set  put  description  of  mortgage] 
and  releases  same  and  all  right,  title  and  interest  in  and  to  the 
land  therein  described. 

Acknowledgment. 

§  370.  Release  by  Trustee.  Where  by  a  trust  deed  duly  re- 
corded, land  is  conveyed  to  trustees  in  fee,  and  they  are  authorized 
to  execute  a  release  to  the  grantor  upon  payment  of  the  indebted- 
ness thereby  secured,  a  release  before  payment  would  be  a  breach  of 
their  trust  and  would  be  unavailing  in  equity  to  any  one  who  had 
knowledge  of  the  breach.^^  But,  being  vested  with  the  legal  title 
the  same  would  pass  by  their  deed  of  release  to  the  releasee,^^  and 
a  second  conveyance  by  him  to  one  having  no  knowledge  of  such 
breach,  the  records,  or  a  conveyancer's  abstract  thereof,  showing 
the  land  to  be  unincumbered,  would  vest  the  legal  title  in  such 
grantee,  or  if  made  by  way  of  pledge,  would  entitle  the  indebtedness 
thereby  secured  to  priority  of  payment.^''' 

This  is  a  subject,  however,  upon  which  there  is  not  an  entire 
unanimity  of  judicial  opinion.  Of  course,  if  the  trustee  releases 
the  trust  deed  before  payment  of  the  money  which  it  was  given  to 
secure,  in  contravention  of  his  trust,  such  release,  as  between  the 
immediate  parties,  as  well  as  all  others  who  have  notice  of  the  facts, 

uable  considerations."     This  alludes  36  Taylor  v.   King,  6  Munf.    (Va.) 

to    the    payment    of    the    mortgage  358;    Den   v.   Trautnuin,   7   Ired.    (N. 

debt.      It   is   unnecessary   to    set   out  C.)    155. 

the  clause;  "$1.00,  etc.,"  sufficiently  37  Williams   v.   Jackson,   107   U.   S. 

indicates  its  nature.  478;    Barbour    v.    Scottish- American 

35  Ins.   Co.  V.  Eldredgc,   102  U.   S.  Mtg.    Co.,    102    111.    121. 
545. 


400  ABSTRACTS   OP   TITLE.  [§  370 

will  be  void  and  the  lien  will  be  unaffected  thereby,  as  the  rights 
of  the  cestui  que  trust  are  superior  to  those  of  any  person  chargeable 
with  notice  that  the  trust  deed  was  released  in  violation  of  its  terras. 
There  are  cases  which  seem  to  hold  that  an  unauthorized  release  is 
void  as  to  all  persons,  even  subsequent  purchasers  in  good  faith,^* 
but  the  better  rule,  and  that  which  is  sustained  by  the  volume  of 
authority,  is  that  the  public  records  import  verity ;  that  being  main- 
tained for  the  purpose  of  furnishing  evidence  of  title  a  purchaser 
may  rely  thereon  arid  will  be  protected  by  what  is  there  shown,  un- 
less he  has  notice,  or  is  in  some  way  chargeable  with  notice  of  some 
title  or  claim  inconsistent  therewith.^®  It  has  further  been  held, 
that  the  mere  fact  that  a  trust  deed  is  released  of  record  prior  to 
the  time  of  the  maturity  of  the  indebtedness  thereby  secured,  is  not 
a  circumstance  to  excite  inquiry  on  the  part  of  an  intending  pur- 
chaser.*" 

But,  in  any  event,  a  far  greater  degree  of  care  must  be  observed 
in  passing  the  release  of  a  trustee  than  of  a  mortgagee,  and  pur- 
chasers are  chargeable  with  notice  of  all  the  recitals  of  the  trust 
deed.  They  are  bound  to  observe  the  limited  powers  of  the  trustee 
to  release  the  pledged  property;  the  time  the  notes  for  which  it 
was  given  have  to  run,  and  the  terms  which  authorize  a  reconvey- 
ance f  and  where  a  release  is  made  before  the  maturity  of  the  notes, 
they  being  negotiable,  a  prudent  counsel  should  insist  upon  their 
production  or  of  satisfactory  evidence  showing  that  they  have  been 
surrendered  or  paid.  Another  feature  is  presented  where  the  trust 
has  been  placed  in  two  trustees,  and  counsel  in  making  examina- 
tions should  be  careful  to  see  that  both  trustees  have  united  in  the 
release,  for  no  point  is  better  established  than  that  the  release  of 
lands  by  one  of  two  joint  trustees  is  not,  in  itself,  sufficient  to  dis- 
charge the  land  from  the  lien  of  the  mortgage. 

Not  infrequently  releases  are  executed  by  the  successor  in  trust, 
the  trustee  having  died  or  become  disqualified.  "Where  provision  is 
made  therefor  in  the  trust  deed  such  a  release  is  valid  and  effectual 
upon  the  happening  of  the  contingency.  -  If  the  trust  deed  is  shown 
in  the  examination  the  power  of  the  successor  should  be  inserted  in 
the  abstract.  If  the  trust  deed  is  not  shown,  as  where  the  release 
is  exhibited  in  a  continuation,  or  if  the  power  of  the  successor  is  not 
given  in  the  abstract  of  the  trust  deed  as  it  appears  in  the  former 

38  See,  McPherson  v.  Rollins,  107  705;  Lenuartz  v.  Quilty,  191  111. 
N.  Y.  316.  174;    But    see,    McPherson    v.    Rol- 

39  Day  V.  Brenton,  102  Iowa,  482 ;  lins,  107  N.  Y.  316;  Atkinson  v. 
Lenuartz  v.  Quilty,  191  HI.  174.  Greaves,  70  Miss.  45. 

40Liverniore  v.  Mamcll,  87  loiva, 


§  371]  MORTGAGES.  401 

examination,  a  note  embodying  the  essential  facts  should  be  ap- 
pended to  the  abstract  of  the  release.  The  following  will  serve  as  a 
suggestion : 

Note. — The  Trust  Deed  from  Thomas  Smith  to  James  Brown, 
recorded  Oct.  30, 1891,  as  Doc.  15605,  in  Book  50  of  Records, 
at  page  301,  provides  tJmt  in  case  of  the  death,  resignation, 
removal  from  Cook  county,  Illinois,  or  other  inahility  to  act 
of  said  grantee,  then  Olney  B.  Stuart  is  thereby  appointed 
and  made  successor  in  tmist  therein  with  like  power  and 
authority  as  is  vested  in  said  grantee. 

§371.  Marginal  Discharge.  A  release  or  discharge  made  by 
entry  upon  the  margin  of  the  record  of  the  mortgage  or  other  in- 
strument, is  in  common  use  in  all  the  States,  and  when  made  by 
the  owner  of  the  mortgage,  with  whatever  formalities  may  be  pre- 
scribed by  law,  is  as  effectual  in  divesting  the  lien  of  record  as  a 
formal  and  separate  satisfaction  piece  or  release.*^  It  will  be  un- 
derstood, however,  that  the  authority  of  the  person  so  undertaking 
to  make  the  discharge  must  affirmatively  appear  of  record,  for  a 
marginal  entry  of  satisfaction  by  a  stranger,  without  authority,  is 
void,  although  he  claims  to  be  the  assignee  of  the  mortgage  and 
owner  of  the  indebtedness,*^  and  where  a  person  purporting  to  be 
the  *  *  assignee  of  said  mortgage ' '  assumes  to  discharge  same,  but  no 
assignment  appears  of  record,  this  constitutes  a  radical  defect  in 
the  title  *'  which  should  be  remedied  before  it  is  accepted.  A  mar- 
ginal release  or  satisfaction  should  immediately  follow  the  mort- 
gage it  affects,  and  being  brief  itself  the  abstract  is  correspondingly 
so,  consisting  principally  of  a  recital  of  the  release;  thus. 

On  the  margin  of  the  record  of  the  foregoing  is: 


Thomas   Smith 

(Assignee)^^ 

to 

William  Jones. 


Satisfaction  of  Mortgage. 
Dated  June  21, 1883. 
Recites    that    '' within"    mortgage    has 
been  fully  paid,  satisfied  and  discharged. 

Not  witnessed.*^ 


41 A    purchaser    finding    a    mort-  be  rectified  as  between  the  parties : 

gage   satisfied  of   record   by  a  mar-  Ayers  v.  Hays,  60  Ind.  452. 

ginal  entry,   and   upon  the   faith   of  42  De   Laureal   v.    Kemper,    9    Mo. 

which,    without    actual    notice    of    a  App.  77. 

mistake,    pays    the    purchase    price,  43  Torrey   v.   Deavitt,   53   Vt.   331. 

will  take  the  title  clear  of  the  mort-  44  When  such  is  the  case, 

gage,  although  it  turns  out  that  the  45  Marginal    releases    must,    as    a 

entry    was    a    mistake    which    would  rule,    be    witnessed    by    the    recorder 
Warvelle  Abstracts — 26 


402  ABSTRACTS    OF    TITLE.  *  [§  371 

When  a  iiun-t^'ajire  or  deed  of  trust  is  duly  recorded,  the  "|)ersoii 
whose  property  is  incumbered  thereby  is  entitled  upon  fully  paying 
and  satisfying:  the  debt,  to  secure  which  such  mortgag:e  or  trust 
deed  was  given,  to  have  satisfaction  of  the  same  entered  upon  the 
margin  of  the  record.  And  a  mortgagee  or  trustee  who  fails  or 
refuses,  when  duly  requested,  to  enter  up  such  satisfaction  or  to 
execute  a  deed  of  release,  is  liable  in  damages  to  the  party 
aggrieved.*^ 

It  will  sometimes  happen  that  the  release  is  made,  not  by  tlic 
mortgagee,  but  by  some  person  acting  for  him,  as  an  attorney  in 
fact ;  or  it  may  be  that  the  mortgagee  has  died  and  the  release  is  by 
his  personal  representative.  In  either  event  the  authority  should 
in  some  manner  appear.  A  note,  in  many  instances,  Avill  be  suf- 
ficient, and  when  the  release  is  made,  say  by  an  executor,  the  essen- 
tial facts  of  authority  may  be  shown  in  this  manner : 

Note. — The  Probate  records  of  Cook  County,  Illinois,  show  that 
William  Dinsmore  died  Oct.  19,  1895,  leaving  a  last  will  and 
testament  in  and  hy  which  he  appointed  Charles  E.  Pope 
executor  thereof;  that  said  will  teas  duly  proved  and  ad- 
mitted to  record  and  Letters  Testamentary  thereon  were 
issued  to  said  Charles  E.  Pope,  on  Oct.  29,  1895. 

§  372.  Foreclosure.  Foreclosures  by  entry  and  possession,  or 
strict  foreclosures,  are  now  rarely  pursued  or  allowed  in  a  majority 
of  the  States,  while  in  many  they  are  positively  prohibited.  They 
are  regarded  by  courts  as  severe  remedies,  inasmuch  as  they  trans- 
fer the  absolute  title  mthout  sale,  and  sometimes  without  notice,  no 
matter  Avhat  may  be  the  value  of  the  premises.  In  like  manner 
foreclosures  by  advertisement  and  sale,  so  called,  are  now  generally 
discountenanced  even  where  allowed,  and  resort  is  usually  had  to  a 
court  of  equity  to  perfect  a  title  acquired  through  this  channel.  In 
foreclosure  by  advertisement  the  mortgagee's  or  trustee's  deed  re- 
cites the  procedings,*''  while  foreclosures  in  equity  are  shown  by 
a  summary  of  the  proceedings,  decree  and  report  of  sale. 

§  373.  Proof  of  Title  under  Foreclosure.  To  sustain  a  title 
under  foreclosure  it  would  be  necessary  to  show :  the  mortgage ;  the 
judgment  roll;  the  decree;  the  sale;  and  the  officer's  deed.     The 

or  officer  having   charge   of   the   rec-  Y.)    648.     This  is  the  general   statu- 

ords.  tory  doctrine. 

46    Verges  v.  Gibonoy,  47  Mo.  171  ;  47  For  a  i^reccdcnt  see  §  284. 
Sherwood   v.   Wilson;    2   Sweeny    (N. 


WARVELLE  ABSTRACTS.  Fourth 
Edition.  Page  403,  line  6.  The  word 
role,  should  be  "roll". 


§  373]  MORTGAGES.  403 

abstract,  therefore,  should  disclose  in  a  connected  and  orderly  man- 
ner the  essential  features  of  each  of  the  steps  and  proceedings  above 
enumerated,  and  whenever  practicable,  in  the  order  here  given. 
The  mortgage  need  not  be  minutely  described,  nor  is  it  necessary 
that  the  power  of  sale  be  shown.^*  General  references  are  sufficient. 
The  judgment  role  must  show  the  regularity  of  the  proceedings  and 
the  jurisdiction  of  the  court  both  as  to  the  subject-matter  and  the 
parties.  Final  and  interlocutory  decrees  must  show  every  material 
point  passed  upon.  The  sale  is  evidenced  by  the  officer's  certificate 
of  sale,  report  and  confirmation.  The  deed  follows  as  a  part  of  all 
that  has  preceded  it,  and  the  whole  constitutes  but  one  transaction. 
Each  of  the  several  separate  features  are  integral  and  necessary 
parts. 

48  This  feature  derives  most  of  its       foreclosure    by    advertisement    under 
importance   where   there   has   been   a       the  power. 


CHAPTER  XXIII. 


WILLS. 


S374. 

Generally    considered. 

§  394. 

Devise     on     condition    prece- 

§375. 

Nuncupative    wills. 

dent. 

§376. 

Nature    of    tcstauientaiy    ti- 

§395. 

Conditional  devise — marriage. 

tles. 

§396. 

Contingent    remainders. 

§  377. 

Uelinitions. 

§397. 

Contiiigent   reversion. 

§  378. 

Operation    and    effect    of    de- 

§398. 

Devise  to  married  woman. 

vises. 

§399. 

Devises  to  executors  in  trust. 

§379. 

Validity  of  devises. 

§400. 

Bequest  to  devise  by  descrip- 

§ 3S0. 

Testamentary    capacity. 

tion. 

§  38L 

Construction  of  wills. 

§401. 

Precatory    trusts. 

§381a. 

Errors   of   description. 

§402. 

Perpetuities. 

§382. 

Repugnancy. 

§403. 

Lapsed  devise. 

S383. 

Void   devise — descent   or  pur- 

§404. 

Devises   for   the   payment    of 

chase. 

debts. 

§384. 

Words  of  grant. 

§405. 

Charges    on    lands   devised. 

§385. 

Words  of  purchase  and  limi- 

§ 406. 

Equitable  conversion. 

tation. 

§407. 

Residuary    clause. 

§386. 

The   rule   in   Shelly 's   case. 

§408. 

Codicils. 

§387. 

Interpretation    of    particular 

§409. 

Revocation. 

words  and  phrases. 

§410. 

Formal  requisites. 

§388. 

Words    which    pass    real    es- 

§411. 

Abstract  of  w^ills. 

tate. 

§412. 

Method   of   arrangement. 

§389. 

Limitations  and  remainders. 

§413. 

Practical  examples. 

§  390. 

Devise  to  a  class. 

§414. 

Probate  of  wills. 

§391. 

Gifts  of  the  income  of  realty. 

§415. 

Effect  of  probate. 

§392. 

Devise    with    power    of    dis- 

§416. 

Foreign   probate. 

position. 

§417. 

Abstract  of  probate  proceed- 

§393. 

Indeterminate   devise. 

ings. 

§  374.  Generally  Considered.  The  subject  of  testamentary  con- 
veyances can  only  be  treated  briefly  and  in  outline.  They  occur  in 
every  title  of  long  standing,  and  present  a  greater  variety  of 
phases  and  give  rise  to  more  questions  in  construction  than  any 
other  species  of  conveyance.  They  have  been  the  subject  of  much 
legislation,  and  of  a  vast  number  of  inharmonious,  conflicting  and 
sometimes  contradictory  decisions.  As  muniments  of  title  they 
should  be  of  equal  dignity  with  deeds,  after  proper  probate  and  ad- 
ministration ;  but  the  subtleties  which  have  been  incorporated  into 
the  laws  governing  their  construction  have  rendered  them  less  so, 
except  in  cases  of  direct,  absolute  and  unincumbered  gifts.    In  the 

404 


§  376]  WILLS.  405 

following  paragraphs  an  attempt  has  been  made  to  briefly  enumerate 
a  few  of  the  leading  characteristics  of  this  class  of  conveyances,  and 
to  point  out,  in  a  general  way,  some  of  the  questions  that  arise  in 
examination  of  titles  acquired  by  way  of  testamentary  gift.  This 
has  been  done  in  a  suggestive,  rather  than  an  exhaustive  manner,  for 
the  narrow  limits  of  our  book  will  permit  of  none  other,  and  what 
follows  is  intended  merely  as  clues  or  reminders  to  stimulate  the  ex- 
aminer, and  direct  his  attention  to  matters  that  otherwise  might 
have  escaped  his  observation. 

§  375.  Nuncupative  Wills.  Oral  declarations  of  a  testamentary 
character  made  in  extremis  are  available  only  in  the  disposition  of 
personal  property,  and  hence  are  not  considered  in  the  examina- 
tion of  titles,^ 

§376.  Nature  of  Testamentary  Titles.  One  who  takes  under 
a  will  is  regarded  as  a  purchaser  equally  with  him  who  takes  under 
a  deed,  but  the  estate  and  title  in  the  hands  of  a  devisee,  while  as 
full  and  ample  as  though  derived  by  deed,  does  not  always  possess 
that  indefeasible  character  which  attaches  to  it  in  the  latter  case. 
An  innocent  purchaser  by  deed  takes  the  title  unaffected  by  latent 
equities,  and  the  undisclosed  rights  of  third  persons,  but  the  devisee 
acquires  only  the  title  of  the  testator  as  it  existed  at  the  time  of  his 
death,  with  all  its  infirmities  and  imperfections,  and  subject  to  all 
equities  and  liens  in  favor  of  strangers.  Such  title,  though  com- 
prising the  fee,  or  whatever  interest  may  have  been  granted,  is  fur- 
ther liable  to  be  defeated  during  the  course  of  administration  by  a 
sale  by  the  executor  in  satisfaction  of  the  debts  of  the  decedent ;  ^ 
or  by  the  very  instrument  of  its  conveyance,  when  legacies  thereby 
given  are  expressly  charged  upon  the  realty  and  there  exists  a  de- 
ficiency of  personal  assets ;  ^  or  where  the  devise  is  couched  in  am- 
biguous or  uncertain  language  requiring  a  judicial  construction. 
The  two  former  contingencies  can  arise  only  prior  to  final  settle- 
ment in  the  due  course  of  administration ;  the  latter  at  any  time 
before  the  bar  of  the  statute  has  intervened. 

The  title  to  land  devised  vests  in  the  devisee  iuunediately  upon 

1  Lewis  V.  Aylott,  45  Tex.  190;  estate  under  a  will  assumes  the  pay- 
Smithdeal  v.  Smith,  64  N.  C.  52;  ment  of  legacies  imposed  upon  him 
Campbell  v.  Campbell,  21  Mich.  438.  by  the  terms  of  the  will,  and  equity 

2  Hill  V.  Treat,  67  Me.  501 ;  Van-  will  regard  him  as  a  trustee  and 
syckle   v.   Eichardson,    13    111.    171.  entertain  a  bill  to  compel  him  to  per- 

3  Wood  V.  Sampson,  25  Gratt.  form  his  trust:  Mahar  v.  O'Hara, 
(Va.)  845;  Lewis  v.  Darling,  16  4  Gilm.  (111.)  424;  Burch  v.  Burch, 
How.    1.      A    devisee    who    takes    an  52  Ind.  136. 


406  ABSTRACTS   OF    TITLE.  f  §  376 

the  death  of  tlie  testator ;  and  such  devisee  is  entitled  to  the  imme- 
diate possession  of  the  land,  and  to  hold  the  same  until,  when  neces- 
sary, it  is  subjet'ted  by  the  executor  to  the  payment  of  debts* 

§377.  Definitions.  "Devise"  is  the  generic  term  employed  to 
denote  a  gift  of  real  property  by  a  person's  last  will  and  testament, 
and  is  distinguished  from  "legacy,"  which  applies  only  to  person- 
alty. By  analogy,  the  person  to  whom  the  gift  is  made  is  called 
a  devisee,  and  the  testator  is  frequently  spoken  of  as  the  devisor. 
The  term  "bequest"  is  of  indiscriminate  application  and  includes 
both  "devise"  and  "legacy." ^ 

§378.  Operation  and  Effect  of  Devises.  It  is  a  rule  of  the 
common  law  that  a  will  operates  only  upon  lands  owned  by  the 
testator  at  the  time  such  will  was  made,  and  the  title  to  which  he  re- 
tained to  the  time  of  his  decease.  This  rule  has  been  very  generally 
changed  by  statute,  which  substitutes  therefor  a  more  reasonable 
rule  to  the  effect,  that  everj^  will  that  shall  be  made  by  a  testator  in 
express  tenns,  of  all  his  real  estate,  or  in  any  other  terms  denoting 
his  intent  to  devise  all  his  property,  shall  be  construed  to  pass  all  the 
estate  which  he  was  entitled  to  devise  at  the  time  of  his  death.^  It 
is  the  application  of  this  rule  which  gives  to  the  residuary'-  clause 
much  of  its  present  importance.  Intention,  however,  is,  after  all, 
the  true  test  of  a  will,  and  where  the  intention  is  manifest,  the  will 
speaks  from  the  time  intended  by  the  testator,"^  even  though  before 
his  death.® 

§  379.  Validity  of  Devises.  The  several  States  possess  inherent 
power  to  define  the  tenure  of  real  property  within  their  respective 
limits;  to  prescribe  the  mode  of  its  acquisition  and  transfer,  the 
rules  of  its  descent,  and  the  extent  to  which  a  testamentary  disposi- 
tion of  it  may  be  exercised  by  its  owners  as  well  as  the  persons  or 
classes  of  persons  who  may  take  under  such  disposition.®    Resort 

4  Hall  V.  Hall,  47  Ala.  290;  Ham-  the   language   used    repeals   the   pre- 

ilton    V.    Porter,    63    Pa.    St.    332.  sumption,    taking    into    consideration 

6  Dow  V.  Dow,  36  Me.  211;  Ladd  v.  the    entire    instrument:       Updike    v. 

Harvey,   1   Post.    (N.   H.)    514;   Lai-  Tompkins,    100    111.    406. 

lerstedt   v.    Jennings,    23    Ga.    571.  7  Gold    v.    Judson,    21    Conn.    616; 

eCanfield    v.    Bostwick,    21    Conn.  Dunlap  v.  Dunlap,  74  Me.  402. 

550;  Peters  v.  SpUlman,  18  HI.  373;  8  PhUlipsburg   v.   Burch,   37   N.   J. 

Haley    v.    Gatewood,    74    Tex.    281;  Eq.  482. 

hut  though  it  is  a  general  rule,  that  9  United   States  v.   Fox,  94  U.   S. 

a  will  is  held  to  speak  from  the  death  (4  Otto)  315;  Kerr  v.  Dougherty,  7 

of  the  testator,  it  is  otherwise  where  X.   Y.   327. 


§  381]  WILLS.  407 

must  therefore  be  had  to  the  statute  to  determine  the  validity  of  all 
bequests,  and,  where  that  describes  or  enumerates  the  persons  or 
classes  who  may  take,  a  devise  to  persons  or  classes  not  therein  speci- 
fied will,  it  seems,  be  void.^°  Where  a  devise  is  void  by  the  rules  of 
law,  the  land  descends  to  the  heirs  at  law  of  the  testator.^^ 

§  380.  Testamentary  Capacity.  Every  work  on  wills  is  largely 
devoted  to  the  subject  of  testamentary  capacity.  This  is  a  subject, 
however,  that  will  rarely  be  presented  in  examinations  of  title,  other- 
wise than  as  it  incidentally  appears  in  the  proceedings  relative  to 
probate.  The  right  of  testamentary  disposition  is  controlled  by 
statute,  but  is  given  generally  to  all  persons  of  full  (legal)  age,  be- 
ing of  sound  mind  and  memory,  and  extends  to  all  species  of  prop- 
erty and  to  every  right,  title  and  interest  therein.  Alienage  and 
coverture,  formerly  constituted  common  law  or  statutory  disabili- 
ties, but  a  gradual  removal  of  restraints  on  alienation  has  virtually 
or  expressly  abolished  such  disabilities  in  the  United  States.  In- 
fants and  persons  of  insufficient  mind  are  about  the  only  persons 
upon  whom  any  restrictions  are  now  placed.  The  facts  of  legal  age 
and  a  sound  and  disposing  mind  ^^  are  matters  of  primary  investiga- 
tion and  proof  in  all  probates  of  wills,  and  the  questions  thus  pre- 
sented and  presumably  satisfactorily  answered  at  tlie  outset,  are  not 
again  raised  during  the  examination. 

§  381.  Construction  of  Wills.  Upon  the  ground  that  wills  are 
often  made  in  haste,  and  by  inexperienced  persons,  a  devise  is  not 
construed  strictly  and  teclmically,  like  a  deed,  but  liberallj^,  and 
according  to  the  intent  of  the  testator,  and  such  intent  may  be 
gathered,  in  case  of  doubt,  not  from  detached  clauses,  but  from  the 
whole  will,  so  that  every  word  may  have  its  effect,  if  possible.^^  On 
the  other  hand,  there  is  a  certain  degree  of  strictness  in  the  con- 

10  Thus,  by  a  statute  of  New  York,  12  To   be   of   sound   and   disposing 

a  devise  of  lands  in  that  State  can  mind,   the    law   simply    requires    that 

only  be  made  to  natural  persons,  and  the   testator   be   able   to   manage   his 

to   such   corporations   as   are   created  own  aflfairs,  and  to  know  intelligent- 

under  the  laws  of  the  State  and  are  ly  what  disposition  he  is  making  of 

authorized  to  take  by  devise ;   a  de-  them :     Harvey  v.  Sullen 's  Heirs,  56 

vise,  therefore,  of  lands  in  that  State  Mo.   372. 

to    the    government    of    the    United  13  Welch    v.    Huse,    49    Cal.    507 ; 

States  was  held  void :      United  States  Butler  v.  Huestis,  68  111.  594 ;  Lytle 

v.  Fox,  94  U.  S.  315.  v.   Beveridge,   58  N.  Y.   592;   Moran 

llDeford  v.   Deford,   36  Md.   168;  v.   Dillehay,  8  Bush.  434;   Bergan   v. 

James  v.  James,  4  Paige,  115;   Hay-  Cahill,  55  111.  160. 
den  V.   Stoughton,   5   Pick.    528. 


408  ABSTRACTS   OP   TITLE.  [§381 

struction  of  wills  that  is  almost  wholly  wanting  in  the  case  of  deeds, 
and  while  courts  may  look  beyond  the  written  words  yet  extrinsic 
evidence  is  never  admissible  to  alter,  detract  from  or  add  to  what 
is  there  set  down. 

It  is  a  cardinal  rule  in  the  construction  of  wills,  that  a  testator 
is  always  presumed  to  use  the  words  in  which  he  expresses  himself, 
according  to  their  strict  and  primary  acceptation,  unless  from  the 
i-ontext  it  appears  that  he  has  used  them  in  a  different  sense;  in 
which  case  the  sense  in  which  he  thus  appears  to  have  used  them 
will  be  the  sense  in  which  they  are  to  be  construed, ^^  and  technical 
\vords  are  presumed  to  be  used  in  their  legal  sense,  unless  there  is  a 
plain  intent  to  the  contrary.^^  The  general  intent  will  prevail  over 
expressions  indicating  a  different  particular  intent, ^^  though  every 
expressed  particular  intent  must  be  carried  out  when  it  can  be,^''' 
and  when  a  will  is  susceptible  of  a  two-fold  construction,  one  of 
which  avoids  and  the  other  upholds  it,  the  latter  must  be  adopted. ^^ 
The  general  rule,  however,  that  wills  are  to  be  construed  according 
to  the  intention  of  the  testator,  must  be  understood  as  the  intention 
of  the  testator  as  expressed  in  the  will;  and  this  must  be  judged  of 
exclusively  by  the  words  of  the  instrument,  as  applied  to  the  subject- 
matter  and  the  surrounding  circumstances,^®  and  not  from  extrinsic 
matter  or  evidence  aliunde.^^ 

These  are  the  fundamental  principles  that  govern  the  construc- 
tion of  wills,  and  to  them  little  can  be  added  that  is  of  general  ap- 
l)lieation.  The  donor  of  property  by  testamentary  disposition  has 
an  almost  unlimited  scope  within  which  to  exercise  his  judgment  or 

14  Luce  V.  Dunham,  69  N.  Y.  36;  19  Bell  v.  Humphrey,  8  W.  Va.  1; 
Edwards  v.  Bibb,  43  Ala.  666;  Wheeler  v.  Hartshorn,  40  Wis.  83; 
Mead  v.  Jennings,  46  Mo.  91;  Felt-  Blanchard  v.  Maynard,  103  111.  60. 
man  v.  Butts,  8  Bush  (Ky.),  115.  20  McAlister  v.  Butterfield,  31  Ind. 
Words  may  be  considered  in  an  order  25 ;  Brownfield  v.  Wilson,  78  111.  467 ; 
other  than  that  in  which  they  are  Caldwell  v.  Caldwell,  7  Bush  (Ky.), 
placed,  if  the  intent  of  the  testator  515;  Sherwood  v.  Sherwood,  45  Wis. 
is  better  served  thus:  Ferry's  Ap-  357.  It  is  true  that  the  condition 
peal,  102  Pa.  St.  207.  of  the  testator  at  the  time  of  execu- 

15  Butler  V.  Huestis,  68  111.  594 ;  tion,  the  state  of  his  property,  his 
France's  Estate,  75  Pa.  St.  220;  De-  family  and  the  like,  may  be  shown 
Kay  V.  Irving,  5  Den.  646.  in   order   to   throw  a   light   upon   his 

16  Bell  V.  Humphrey,  8  W.  Va.  1 ;  intention,  yet  as  the  writing  is  the 
Parka  v.  Parks,  9  Paige,  107;  only  outward  and  visible  expression 
Schott's  Estate,  78  Pa.  St.  40;  Wat-  of  his  meaning,  no  other  words,  as  a 
son  V.  Blackwood,  50  Miss.  15.  rule,  can  be  added  to  or  substituted 

17  Bell  V.  Humphrey,  8  W.  Va.  1;  for  those  used.  Hunt  v.  White,  24 
Lepage  v.   McNamara,   5   Iowa,   124.  Tex.  643;  Mackie  v.  Story,  93  U.  8. 

18  Mason  v.  Jones,  2  Barb.  229.  589 ;  Abercrombie  v.  Abercrombie,  27 


§  381a]  WILLS.  409 

to  gratify  his  caprice,  and  while  multitudes  of  wills  are  daily  pre- 
sented for  construction  it  is  seldom  that  we  find  any  two  of  them 
exactly  similar.  Unlike  deeds  of  conveyance  in  this  respect,  they 
are  as  multiform  and  distinct  in  their  structure,  phraseology  and 
purposes  as  are  the  mental  operations,  motives  and  feelings  of  the 
different  testators.  The  intention  must  in  all  cases  be  sought  for 
and  if  possible  ascertained;  and  this  intention,  when  it  is  not  in 
conflict  with  the  settled  policy  of  law,  will  always  be  respected  and 
allowed  to  operate.^^  Any  construction  which  will  result  in  partial 
intestacy  is  to  be  avoided,  unless  the  language  of  the  will  compels 
it.22 

The  questions  of  construction  more  frequently  presented  in  the 
examination  of  titles,  arise  through  the  failure  of  the  testator  to 
make  a  full  and  explicit  disclosure  of  the  method  of  disposition. 
The  rule  is  fundamental,  in  such  cases,  that  the  deficiencies  cannot 
be  supplied,  nor  the  inaccuracies  corrected  by  extrinsic  evidence, 
and  so  strict  are  the  courts  in  applying  this  rule  that  they  will  not 
permit  the  terms  of  the  will  to  be  altered  even  where  the  testator 
has,  by  mistake,  misdescribed  lands,  by  substituting  those  which  can 
clearly  be  proved,  he  intended  to  devise.^^  This  is  in  pursuance  of 
the  old  and  well  known  principle  that  extrinsic  evidence  cannot  be 
received  to  change  or  vary  a  solemnly  executed  instrument.  Yet 
the  rule  is  subject  to  some  qualification  in  the  case  of  erroneous 
descriptions  where  by  striking  out  a  word  or  phrase  shown  to  be 
false  a  partial  intestacy  may  be  avoided. 

§  381a.  Errors  of  Description.  Not  infrequently,  through  inad- 
vertence or  mistake,  a  testator  will  devise  lands  which  he  does  not 
own  and  omit  to  dispose  of  lands  which  he  does  own,  thereby  creat- 
ing a  partial  intestacy.  Thus,  the  devise  may  be  of  Lot  A,  a  tract 
which  the  testator  did  not  own,  either  at  the  time  of  making  the  will 
or  at  his  death.  It  may  be  that  he  did  own  Lot  B,  and  that  this  fact 
is  known  to  counsel.    Here,  then,  we  have  what  is  known  as  a  latent 

Ala.  489;  Herrick  v.  Stover,  5  Wend.  would    otherwise    be    doubtful,    but 

(N.  Y.)  580.     See,  however,  the  sue-  the  rights  of  parties  taking  under  the 

ceeding  section  on  "repugnancy."  will  are  always  to  be  determined  by 

21  Douglass  V.  Blackford,  7  Md.  the  law  as  it  existed  at  the  time  the 
22;  Summit  v.  Yount,  109  Ind.  506.  will  took  effect :     Carpenter  v.  Brown- 

22  Vernon    v.    Vernon,    53    N.    Y.       ing,  98  111.  282. 

351;  Gate  v.  Cranor,  30  Ind.  292.  23  See,  Kurtz  v.  Hibner,  55  111. 
The  state  of  the  law  at  the  time  of  514;  Starkweather  v.  Bible  Society, 
the  execution  of  a  will  often  affords  72  111.  50.  The  text  states  the  gen- 
material  assistance  in  arriving  at  the  eral  rule,  but  this  seems  to  have 
intention    of    the    testator,    when    it  been  disputed  in  some  states. 


410  ABSTRACTS    OF    TITLE.  [§  381a 

ambiguity  and  tlie  questions  whieh  it  raises  are  very  perplexing. 
The  general  rule  is,  that,  however  many  errors  there  may  be  in  the 
terms  of  description  employed  in  a  will,  whether  of  the  devisee  or 
the  subject-matter  of  the  devise,  the  gift  will  not  be  avoided  if,  after 
rejecting  the  errors  or  false  Avords,  enough  remains  to  show  with 
reasonable  certainty  what  was  intended  by  the  testator.  Hence,  a 
devise  of  land  by  a  description  partly  false,  as  where  a  wrong  sec- 
tion number  is  given,  may  yet  be  effective  if  wliat  remains,  after 
i-ejecting  the  false,  will  serve  to  identify  the  jiarticular  tract  wliicli 
was  intended.^* 

But  this  rule  is  for  the  guidance  and  direction  of  courts  in  the 
construction  of  wills.  A  court,  in  a  proper  case,  may  strike  out 
false  or  ambiguous  words,  and  may  then  read  the  vnW  with  the  false 
words  eliminated  therefrom.  Counsel,  however,  in  the  examination 
of  a  title,  has  no  such  privilege.  His  own  knowledge  of  the  actual 
facts  may  serve  to  indicate  a  course  to  be  pursued  in  order  to  per- 
fect title,  but  he  cannot  himself  construe  the  will,  nor  should  he  at- 
tempt to  apply  the  rule,  however  certain  he  may  be  that  the  rights 
of  the  parties  will  be  determined  by  it.  In  a  case  such  as  we  are  now 
considering  counsel  can  do  no  more  than  point  out  the  latent  defect 
and  suggest  a  remedy  that  will  serve  to  cure  it. 

The  strong  tendency  of  modern  decisions  is  to  avoid  even  partial 
intestacy,  and  while  extrinsic  evidence  may  not  be  resorted  to  for 
the  purpose  of  changing  or  varying  the  words  of  a  will,  yet  it  is  now 
well  settled  that  when  a  latent  ambiguity  is  disclosed  by  extrinsic 
evidence  it  may  be  removed  by  extrinsic  evidence.^ 

§  382.  Repugnancy.  It  is  a  well  established  rule,  that  where 
two  or  more  provisions  in  a  will  are  clearly  repugnant  or  irreconcil- 
able, the  last  should  prevail,^^  as  being  indicative  of  the  testator's 
latest  wish ;  ^7  yet  it  is  a  rule  that  is  only  applied  in  cases  of  absolute 
necessity,  as  where  the  provisions  are  totally  inconsistent  with  each 
other,  and  the  real  intention  of  the  testator  is  incapable  of  deter- 
mination.28     A  prior  provision,  however,  will  never  be  disturbed, 

24  See,  Pate  v.   Bushong,   161  Ind.  Bradstreet   v.   Clarke,   12   Wend.    (N. 

533;   Whitcomb   v.   Eodnian,   156   111.  Y.)    602;    Van    Nostrand    v.    Moore, 

116;    Stewart    v.    Stewart,    96    Iowa  52    N.    Y.    12;    Evans   v.    Hudson,    6 

620.  Ind.  293;  Miller  v.  Flournoy,  26  Ala. 

25Whiteman  V.  Whiteman,  152  lad.  724;    Pickering   v.   Langdon,   22   Me. 

203;  Patch  v.  White,  117  U.  S.  210;  430. 

Decker  v.  Decker.  121  111.  341;  Mer-  27  Eountree  v.   Talbot,  89   111.   246. 

rick  V.  Merrick,  37  Ohio  St.   126.  28  Covenhoven    v.    Shuler,    2    Paige 

26n.amlin  v.   Express  Co.,   107   111.  (N.  Y.),  122;   Oxley  v.  Lane,  35  N. 

443;    Fulton    v.    Hill,    41    Ga.    554;  Y.   340;    Newbold   v.    Boone,   52   Pa. 


§  383]  WILLS.  411 

further  than  is  absolutely  necessary  to  give  effect  to  a  subsequent 
one,2®  nor  will  the  expression  of  a  particular  intent  be  sufficient  to 
overcome  the  manifest  general  intent.^**  Thus,  where  the  first 
clause  absolutely  disposes  of  all  testator's  property,  a  subsequent 
clause  providing  for  the  distribution  of  a  fund  which  would  or 
might  at  some  future  time  accrue  to  his  estate  would  not  affect  the 
antecedent  general  disposition,  for  in  such  case,  no  residuum  being 
contemplated,  there  could  be  no  residuary  legatees.^^  Similarly, 
where  there  is  a  devise  of  an  unlimited  power  of  disposition  of  an 
estate  in  such  manner  as  the  devise  may  think  proper,  a  limitation 
over  is  inoperative  and  void,  by  reason  of  its  repugnancy  to  the 
principal  devise.^^ 

Under  the  application  of  the  rule  that  a  will  should  be  so  con- 
strued as  to  effectuate  the  intention  of  the  testator  as  far  as  possible, 
express  words  must  sometimes  yield  to  the  otherwise  manifest  inten- 
tion, and  words  will  even  be  added  where  it  is  absolutely  necessary 
to  avoid  absurdity  or  give  effect  to  such  manifest  intention.^ 

§  383.  Void  Devise — Descent  or  Purchase.    It  was  a  maxim  of 

the  common  law  that  title  by  descent  was  a  worthier  or  better  title 
than  one  accruing  by  purchase,  and  occasionally  some  belated 
American  court  announces  the  same  doctrine.^^  As  a  consequence 
of  this  doctrine  a  rule  was  formulated  that  a  devise  giving  exactly 
the  same  estate  in  quantitj^  and  quality  as  the  devisee  would  take  bj^ 
descent  if  the  devisee  had  not  been  made,  is  void,  and  the  title  so 
acquired  is  held  by  descent  and  not  by  purchase.  This  rule,  it 
would  seem,  still  obtains  in  a  few  states.^^ 

This  was  one  of  the  subtleties  of  the  medieval  lawyers  and 
grew  out  of  the  legal  notions  involved  in  old  feudal  system.  Under 
that  system  there  was  but  one  heir,  and  that,  usually,  was  the  oldest 

St.   167;   Bartlett  v.  King,   12  Mass.  31  Henning  v.  Varner,  34  Md.  102. 

542;    Thrasher    v.    Ingram,    32    Ala.  32  Hamlin  v.   Express  Co.,   in7   111. 

645;  Siceloff  v.  Kedman,  26  Ind.  251.  443.      Although    the    limitation    over 

29  Taggart  v.  Murray,  53  N.  Y.  might,  under  some  circumstances,  be 
233;  Kenzie  v.  Eoleson,  28  Ark.  come  effective  should  the  donee  of 
102;   Parker  v.   Parker,   13   Ohio   St.  the  power  fail  to  exercise  it. 

95;  Stickle 's  Appeal,  29  Pa.  St.  234.  33Welsch  v.  Savings  Bank,  94  111. 

30  Hamlin  v.  Express  Co.,  107  111.  191;  Wright  v.  Dunn,  10  Wheat. 
443;  Bell  v.  Humphrey,  8  W.  Va.  204;  Bartlett  v.  King,  12  Mass.  537; 
1;  Cook  V.  Holmes,  11  Mass.  528;  Ruston  v.  Euston,  2  Dall.  244. 
Pickering  v.  Langdon,  22  Me.  413;  34  Kellett  v.  Shepard,  139  111.  433. 
Schott's  Estate,  78  Pa.  St.  40;  Wat-  35  Akers  v.  Clark,  184  111.  ]3fi; 
son  v.  Blackwood,  50  Miss.  15;  Miller  P.iedler  v.  Biedlcr,  87  Va.  300. 

V.  Flournoy,  26  Ala.  724. 


412  ABSTRACTS   OF    TITLE.  [§  383 

or  only  son.  In  case  there  were  several  daughters  and  no  son  the 
legal  fiction  was  preserved  and  they  all  took  as  one  heir.  There  were 
a  number  of  reasons  that  might  be  assigned  for  such  a  rule  at  the 
early  day  in  which  it  was  promulgated,*^  but  these  reasons  never 
had  any  fon-c  in  this  country  while  the  rule  itself  has  been  abolished 
in  England  by  statute. 

AMiere  one  devises  property  to  his  heirs  it  is  but  fair  to  presume 
that  he  intended  they  should  take  the  property  under  the  will,  and 
in  furtherance  of  this  principle  the  rule  first  stated  has  been  set 
aside  in  a  majority  of  the  American  States,  and  the  devisees  in  such 
eases  held  to  take  by  purchase  and  not  by  descent.^''  Where,  how- 
ever gifts  to  heirs  at  law  are  made  to  them  simpliciter,  the  persons 
to  take  and  the  proportions  of  their  respective  shares  must  be  de- 
termined by  the  statutes  of  descent  and  distrilnition.*' 

§  384.  Words  of  Grant.  As  in  deeds  so  in  wills,  there  must  be 
apt  words  of  grant  or  conveyance  or  words  indicative  of  testamen- 
tary intent,  but  any  form  of  expression  will  be  sufficient  to  pass  title, 
provided  the  intent  is  manifest.  * '  Give, "  "  devise, "  or  "  bequeath ' ' 
are  the  words  commonly  in  use,  and  all  or  either  will  be  sufficient  to 
pass  real  estate,  though  the  technical  word  for  this  purpose  in  a 
properly  drawn  will  is  ' '  devise. ' '  ^®  Words  of  advice,  desire,  recom- 
mendation, etc.,  are  not  ordinarily  sufficient,*"  although,  in  some 
cases,  they  may  be  sufficient  to  raise  trusts.*^ 

36  In  England  title  by  descent  was  but  by  descent  or  operation  of  law. 
favored  by  the  courts,  first,  because  Donnelly  v.  Turner,  60  Md.  81. 
land  in  the  hands  of  the  heir  at  law  37  Gilpin  v.  Hollingsworth,  3  Md. 
liy  descent  was  chargeable  with  the  190.  When  heirs  take  by  purchase 
payment  of  the  ancestor's  debts,  and  they  do  not  take  as  heirs,  but  as  a 
then  again  because  it  favored  the  class  of  persons  to  whom  by  that 
right  of  escheat  upon  the  failure  of  means  the  testator  has  selected  to 
heirs  on  the  part  of  the  ancestor  devise  his  property,  and  as  they  take 
from  whom  the  lands  descended.  On  in  their  own  right,  the  distribution 
the  other  hand,  land  acquired  by  pur-  is  to  be  made  xier  capita  and  not 
chase  was  not  liable  for  debts,  and  per  stirpes:  Campbell  v.  Wiggins, 
upon  the  death  of  the  owner,  it  de-  1  Rice's  Ch.  (S.  C.)  10;  and  see 
scendcd  first  to  the  heirs  on  the  Robinson  v.  Le  Grand,  65  Ala.  111. 
paternal  side,  and  upon  failure  of  38  Richards  v.  Miller,  62  111.  417. 
such  heirs,  then  to  the  heirs  on  the  39  Acceptance  of  a  devise  where  it 
part  of  the  mother.  Title  by  de-  is  beneficial  to  the  devisee  and  at- 
scent  was  considered  the  worthier  tended  with  no  charge  or  risk,  is 
title  and  where  the  will  gave  to  a  always  presumed:  Brown  v.  Thorn- 
devisee  the  same  estate  in  quantity  dike,  15  Pick.  388. 
and  quality  which  he  would  have  40  Gilbert  v.  Chapin,  19  Conn.  342; 
taken  as  heir  at  law,  he  was  ad-  Bohn  v.  Barret's  Ex'r,  79  Ky.  378. 
judged   to   take   not   under  the   will,  41  See   ' '  Precatory   Trusts ' '  infra. 


§  385]  WILLS.  413 

§  385.  Words  of  Purchase  and  Limitation.  In  preparing  the 
synopsis  of  wills,  the  attention  of  the  examiner  is  particularly  di- 
rected to  Avhat  are  known  as  the  words  of  "purchase"  and  "limita- 
tion." These  are  the  words  used  in  connection  with  gifts  to  specific 
I^ersons,  and  show,  as  in  case  of  deeds,  the  nature  or  quality  of  the 
estate  conveyed.  They  consist  of  such  words  as  "heirs,"  "heirs  of 
the  body,"  "issue,"  etc.,  and  accordingly  as  the  word  is  used  may 
be  either  a  word  of  purchase  or  of  limitation.  Sufficient  of  the  con- 
text must  be  given  to  show  the  sense  in  which  the  word  is  employed 
and  to  permit  a  proper  construction.  The  word  "issue"  presents 
the  largest  number  of  questions  and  has  been  productive  of  an  al- 
most innumerable  number  of  decisions.  As  a  word  of  limitation  it 
is  collective,  and  signifies  all  the  descendants  in  all  generations ;  but 
as  a  word  of  purchase  it  denotes  a  particular  person  or  class  of  per- 
sons to  take  under  the  devise.  The  term  may  be  employed  in  either 
manner,  as  will  best  effectuate  the  testator's  intention,  and  is  the 
most  flexible  word  that  can  be  used.*^  Courts  more  readily  inter- 
pret the  word  "issue"  as  the  synonym  for  "children,"  and  as  a 
mere  description  of  the  person  or  persons  to  take,  than  they  do  the 
words  "heirs"  or  "heirs  of  the  body."  *^ 

The  usual  and  ordinary  words  for  conveying  a  fee  simple  in 
wills  as  well  as  in  deeds,  are  "heirs,"  or  "heirs  and  assigns  for- 
ever; "but  a  devise  to  a  man  "forever,"  or  to  one  "and  his  assigns 
forever,"  or  to  one  in  "fee  simple,"  will  pass  an  estate  of  inherit- 
ance to  the  devisee,  notwithstanding  the  omission  of  the  legal  words 
of  inheritance,**  while  the  statute,  in  a  majority  of  the  States,  will 
compensate  for  the  deficiency  and  give  to  the  devisee  an  estate  in 
fee,  none  other  being  mentioned.'** 

42Tiniaiius  v.  Dugan,  46  Md.  402;  46    Md.    402;    Tatum    v.    McClellau, 

Daniel  v.   Whartenbv,   17   Wall.   639.  50    Miss.    1;    Wetter   v.    Walker,    62 

Words   in   the   introductory   or   other  Ga.    142;    Edwards    v.    Barnard,    84 

parts  of  a  will  indicating  an  inten-  Pa.    St.    184. 

tion  of  the  testator  to  dispose  of  his  45  Leiter  v.  Sheppard,  85  111.  243 ; 

whole  estate,  although  not  conclusive  McConnell    v.    Smith,    23    111.    617 ; 

that  he  intends  to  pass  a  fee,  always  Mirfitt   v.   Jessop,   94   111.    158.      The 

favor    such    construction:      Geyer    v.  statute      very      generally      enacted 

Wentzel,   68   Pa.   St.   84;    Fearing  v.  throughout  the  Union  provides,  sub- 

Swift,  97  Mass.  413.  stantially,  that  every  estate  in  lands 

43  In  England  the  word  "issue"  which  shall  be  granted,  conveyed  or 
is  a  word  of  limitation  and  not  of  devised,  although  other  words  here- 
purchase,  unless  the  contrary  clearly  tofore  necessary  to  transfer  an  es 
appears:    2  Jarm.  on  Wills,  328.  tate  of  inheritance  be  not  added,  shall 

44  Coke  Lit.  9  b;  2  Black,  Com.  be  deemed  a  fee  simple  estate  of  in- 
108;  Meyers  v.  Anderson,  1  Strobh.  heritance,  if  a  less  estate  be  not 
Eq.  (S.  C.)  344;  Timanus  v.  Dugan,  limited    by    express    words,    or    does 


414  ABSTRACTS    OK    TITLE.  [§  385 

Questions,  as  to  Avhetlier  a  devisee  takes  the  fee  or  a  lesser  estate, 
oi'Ciir  most  frequently  -where  the  testator  in  his  anxiety  to  make 
his  gift  eti'eetive  makes  several  befjuests  in  the  alternative,  or  limits 
one  estate  upon  another,  and  are  usually  to  be  decided  by  the  appli- 
cation of  the  rule  in  Shelly 's  case  as  modified  by  local  law.  No  rule 
of  general  application  can  be  formulated,  and  from  a  review  of  the 
reported  cases  on  this  subject  one  can  well  appreciate  the  remark 
of  a  learned  Avriter,  that,  "tlie  liberality  of  the  law  in  construinu- 
wills  has  opened  the  flood-gates  of  legal  chaos. "  "  It  wonld  seem, 
however,  that  whenever  the  intention  of  the  testator  can  be  ascer- 
tained it  will  overcome  all  technical  rules.*''^  and  this  intention  turns, 
not  upon  the  quantity  of  interest  given  to  the  first  taker  or  person 
specified,  but  upon  the  nature  of  the  estate  intended  to  be  given  to 
the  "heirs."" 

§386.  The  Rule  in  Shelly 's  Case.  Though  entailed  estates  are 
no  longer  permitted,  the  rule  in  Shelly 's  case  still  has  a  modified 
force,  and  is  often  invoked  in  the  construction  of  devises  to  deter- 
mine the  operation  of  the  will  and  settle  conflicting  claims.  This 
rules  provides  that,  where  the  ancestor  takes  an  estate  of  freehold, 
and  in  the  same  gift  or  conveyance,  an  estate  is  limited,  either  medi- 
ately or  immediately  to  his  heirs,  either  in  fee  or  in  tail,  the  term 
"heirs"  is  a  word  of  limitation  and  not  of  purchase,*®  and  w'hen 
applied  to  w^ills  is  ordinarily  confined  to  cases  in  which  the  remainder 
is  limited  in  terms  to  the  "heirs"  and  not  to  "children"  or 
"issue. "^^    When  invoked,  as  a  rule,  it  is  not  a  real  exception  to 

not    appear    to    have    been    granted,  "heirs,"   is  not  now  received  in   all 

conveyed   or  devised   ])y   construction  its  original  vigor,  from  the  fact  that 

or   operation   of   law.  it   often   operates   to   defeat   the   tes- 

46  0'nara  on  "Wills,  27,  and  see  tator's  intention,  and  in  many  States 
riark  V.  Boomian's  Ex'rs,  18  Wall.  it  is  regarded  of  no  especial  force 
493.  except  as  an  aid  to  construction  and 

47  Goodrich  v.  Lambert,  10  Conn.  intention:  Blake  v.  Stone,  27  Vt. 
448;  Baker  v.  Scott,  62  111.  90;  But-  475. 

ler  V.  Huestis,  68  111.  601.     The  de-  49  Baker  v.   Scott,  62  111.   90;   Es- 

cisions  of  the  local  courts  will  fur-  tate    of    Utz,    43    Cal.    200. 

nish    the    best    guide    for    construing  50  Akers    v.    Akers,    23    N.    J.    Eq. 

estates   under  wills,   as,   between  the  26;   Estate  of  Utz,  43  Cal.  200.    But 

States,    diametrically    opposed    views  see,  Haley  v.  Boston,  108  Mass.  576. 

will   frequently  be   met  with   on  the  The    word    "children"    in    its    usual 

same  admitted  facts.  sense  is  a  word  of  purchase  and  not 

48  Baker  v.  Scott,  62  111.  90;  4  of  limitation,  and  is  always  to  be 
Kent.  Com.  221.  The  rule  in  Shelly 's  so  regarded  unless  the  testator  has 
ease,  that  is,  the  technical  applica-  unmistakably  used  it  otherwise: 
tion     of     the     words     "heir"     and  Stump  v.  Jordan,  54  Md.  631;  2  Wash. 


§  387]  WILLS.  415 

the  fundamental  doctrine  that  the  intention  of  the  testator  must 
guide  in  interpreting  a  will ;  it  merely  sacrifices  a  particular  intent 
to  a  general  intent.  It  does  not  intei^pret  a  will,  but  takes  effect 
when  the  interpretation  has  been  ascertained.^^ 

§  387.  Interpretation  of  Particular  Words  and  Phrases.  Though 
the  testator  is  presumed  to  use  technical  words  according  to  their 
technical  meaning,^^  ^^j^jg  ^.^j-^  hardly  be  asserted  as  a  rule,  or  should 
it  be  so  asserted,  it  must  be  taken  subject  to  that  other  all  powerful 
rule  that  the  intention  of  the  testator  must  prevail.^'  The  construc- 
tion of  words  in  a  will  is  much  less  technical  than  that  of  the  same 
words  in  a  deed,  for  though  in  deeds  effect  will  always  be  given  to 
the  true  intention  of  the  parties,^*  yet  the  words  employed  govern 
such  intention,  while  in  a  will  the  intention,  in  one  sense,  governs 
the  words.55  The  use  of  the  word  "descend,"  does  not  operate  to 
work  a  descent  in  the  legal,  strict  sense  of  the  term,  as  inheritance 
is  only  through  operation  of  law ;  its  employment,  therefore,  unless 
some  other  means  is  apparent,  is  to  be  taken  as  indicating  the 
desire  of  the  testator  that  his  property  shall  follow  the  same  chan- 
nel in  which  the  law  would  direct  it.^^  "Children"  is  generally 
taken  in  its  primary  and  strict  signification,  and  does  not  include 
grandchildren,^'''  unless  there  is  something  in  the  context  to  show 

Eeal    Prop.    (4th    Ed.)    603.      While  body"    are    employed    to    show   that 

not   infrequently   the  word   * '  heirs, ' '  such    persons    shall    take    under    the 

or  even  the  words  "heirs  and  assigns  devise    as   a    description    of   persons, 

forever"  are  held  not  to  operate  as  they    will    be    treated    as    words    of 

words  of  limitation  because  corrected  purchase  and  not  of  limitation:  But- 

or  explained  by  words   which  follow  ler  v.  Huestis,  68  111.  594.   When  such 

and    which    are    irreconcilable    with  appears   to   be   the    testator's    inten- 

the    notion    of    descent :       Shreve  's  tion  * '  heirs ' '  have  been  construed  to 

Case,   43   Md.   399.  mean   "children." 

SlYarnall's   Appeal,   70   Penn.   St.  52  France's    Estate,    75    Penn.    St. 

335.     'Greater    latitude,    however,    is  220. 

given    in    the    construction    of    wills  53  Smyth    v.    Taylor,    21    111.    296 ; 

than   in    that    of    deeds,    and    courts  Heuser  v.  Harris,  42  111.  425;  Meade 

will   look   to   the   whole    will.      Thus,  v.    Jennings,   46   Mo.    91 ;    Robertson 

the  rule  as  stated  in  the  text,  while  v.  Johnson,  24  Ga.  102. 

of    general    controlling    efficacy    in  54Peckham  v.  Haddock,  36  Til.  38; 

deeds,  where  it  may  usually  be  safe-  Churchill   v.    Reamer,   8   Bush    (Ky.) 

ly  applied,  is  subject  to  a  wide  lati-  256. 

tude    in    wills,    and    while    in    some  55  Edwards  v.   Bibb,  43   Ala.   666 ; 

States   it   may   be    rigidly   enforced,  Brownfield  v.  Wilson,  78  111.  467. 

in    the    majority,    when    explanatory  56  Dennett    v.    Dennett,    40    N.    H. 

words  are  found  in  the  will  showing  498. 

the    intention    of    the    testator    that  57  Hop.son    v.    Commonwealth,    etc., 

the  words  "heirs,"  or  "heirs  of  the  7    Bush    (Ky.)    644;    Moffat   v.   Car- 


416  ABSTRACTS   OP   TITLE.  [§  387 

that  the  testator  intended  to  include  grandchildren,  or  unless  such 
construction  is  necessary  to  render  the  provisions  of  the  "will 
operative.^*  "Issue''  means  heirs  of  the  body.^*  "Heirs,"  as  a 
rule,  means  statutory  heirs,  of  every  kind  and  degree,^®  but  under 
certain  circumstances  may  be  confined  to  children.^^  The  words 
* '  next  of  kin ' '  limit  the  devise  to  blood  relations,  and  do  not  include 
husband  or  wif  e,^^  unless  accompanied  by  other  words  clearly  mani- 
festing a  purpose  to  extend  their  signification.^^  The  term  "rela- 
tives" contains  no  elements  of  legal  certainty.^* 

There  are,  however,  no  arbitrary  or  unbending  rules  in  the  con- 
struction of  the  words  of  a  will.  No  two  wills  are  in  all  respects 
alike.  Where  the  same  precise  form  of  expression  occurs  as  may 
have  been  the  subject  of  some  former  adjudication,  unaffected  by 
any  indication  of  a  different  intention  in  other  parts  of  the  instru- 
ment, the  courts,  with  a  view  to  certainty  and  stability  of  titles, 
will  follow  the  precedent;  yet,  the  cardinal  canon  still  holds  good, 
that  the  intention  of  the  testator  of  each  will  separately  is  to  be 
gathered  from  its  own  four  corners,^*  and  where  the  intention  sat- 
isfactorily appears  it  should  prevail  over  any  artificial  rule  of 
construction.^^ 

§  388.  Words  Which  Pass  Real  Estate.  Sometimes  wills  con- 
tain no  specific  allusions  to  land,  or  particular  bequests  may  be 
made  in  general  terms,  and  in  such  cases  grave  questions  of  con- 
struction may  arise  when  real  estate  is  claimed  under  them.  The 
liberality  of  courts  is  nowhere  more  manifest  than  in  the  solution 
of  these  questions.  The  words  "property"  and  "estate"  when 
used  in  a  general  sense,  are  always  held  sufficient  to  embrace  all 

row,   7   Paige   328;    Gernet  v.  Lynn,  testator  used  the  words  "heirs"   in 

31  Penn.  St.  94;  Cummings  v.  Plum-  the   sense   of  children,   it  will   be   so 

mer,  94  Ind.  403.  construed:     Haverstick's  Appeal,  103 

BSFeit   V.    Vanata,    21    N.    J.    Eq.  Pa.   St.   394;    Hinton  v.   Milburn,   23 

84;    Houghton    v.    Kendall,    7    Allen  W.  Va.   166. 

(Mass.)    72.      The   words    "children  62  Townsend    v.    Kadcliffe,    44    111. 

forever"  in  a  devise,  when  construed  446;    Murdock   v.    Ward,    67    N.    Y. 

with    the    context,    were    held    to    be  387;  Tillman  v.  Davis,  95  N.  Y.  17. 

words    of    inlieritance,    and    to    have  63  Haraden  v.  Larrabee,  113  Mass. 

been  used  in  the  sense  of  heirs.     See  430. 

Moran    v.    Dillehay,    8    Bush    (Ky.)  64Handley   v.   Wrightson,    60    Md. 

434.  198. 

M  Kleppner   v.    Laverty,    70   Penn.  65  Provenchere  's  Appeal,  67   Penn. 

St.   70.  St.  463. 

60  Richards   v.   Miller,   62   111.   417.  66  Kennedy    v.    Kennedy,    105    HI. 

61  Butler  V.  Huestis,  68  111,  594.  350;  Suydam  v.  Thayer,  94  Mo.  49. 
Where    the    context    shows    that    the 


§  388]  WILLS.  417 

the  testator's  property,  real  as  well  as  personal,^''  but  wlien  coupled 
with  directions  applicable  only  to  personalty,  they  will  not  have 
this  effect,  nor  where  subsequent  particulars  clearly  indicate  that 
the  testator  had  only  personalty  in  contemplation.^*  The  word 
' '  effects, ' '  though  savoring  strongly  of  personalty  ^^  may,  when 
the  context  clearly  shows  the  intention,  as  when  used  in  connection 
with  the  word  "real,"'"  be  sufficient  to  pass  land.'''^  "Goods," 
according  to  its  natural,  grammatical,  and  ordinary  meaning,  does 
not  include  lands.  General  usage  has  given  it  a  meaning  as  con- 
sisting of  personalty  only,  and  this  is  its  primary  legal  significa- 
tion.''^^  The  context  may  sometimes  enlarge  this  meaning,  and 
where  it  satisfactorily  appears  that  the  testator  intended  to  use 
the  word  in  a  different  and  more  comprehensive  sense,  so  as  to 
embrace  real  estate,  courts  will  give  effect  to  that  intent.  The 
phrase,  "all  my  worldly  goods,"  if  used  without  specific  enumera- 
tion, may  reasonably  be  supposed  to  embrace  lands,  and  in  some 
instances  has  been  so  construed ;  but  if  attempt  is  made  at  designa- 
tion the  restricted  meaning  implied  from  such  designation  will 
prevail.'* 

The  question  will  frequently  occur  in  constructions  of  the  be- 
quest of  the  residuum,  and  courts  seem  inclined  to  favor  any  con- 
struction which  will  avoid  even  a  partial  intestacy.'* 

Yet  while  no  particular  words  are  necessary  to  pass  real  estate, 
enough  must  appear  to  evidence  the  intention  to  convey,  and  words 
can  not  be  supplied  to  meet  the  deficiency,  even  though  they  may 
have  been  omitted  by  what  might  seem  to  be  palpable  error,'^  and 


67  Fogg  V.  Clark,  1  N.  H.  163 
Jackson  v.  Housel,  17  Johns.  281 
Wheaton  v.  Andress,  23  Wend.  452 
Hunt  V.  Hunt,  4  Gray   (Mass.)    190 


79  N.   E.   176,  12   L.   E.   A.    (N.   S.) 
661. 

TO  As,    ' '  all    my    effects,    real    and 
personal. ' ' 


Korn  V.  Cutler,  26  Conn.  4;   Monroe  71  Paige  v.  Foust,  89  N.  C.  447. 

V.   Jones,   8   E.    I.   526.      This   is   di-  72Farish  v.  Cook,  78  Mo.  212. 

rectly    contrary    to    the    earlier    and  73  As  where  testator  bequeaths  "all 

more    technical   rule,   which    confined  my    worldly    goods,    consisting    of, ' ' 

these    words    entirely    to    personalty  etc.,  the  enumeration  describing  only 

unless    there    was    something    in    the  personalty;  real  estate  not  specifical- 

context  to  show  that  the  testator  in-  ly    mentioned    or    otherwise    referred 

tended  a  more  enlarged  meaning.  to  will  not  pass. 

68  Smith  v.  Hutchinson,  51  Mo.  83.  74  Vernon  v.  Vernon,  53  N.  Y.  351; 

69  Indeed,  this  term  when  used  in  Cate  v.  Cranor,  30  Ind.  292 ;  Damon 
a  will,  is  generally  construed  to  refer  v.  Bibben,  135  Mass.  458. 

to    personalty    only,    unless    there    is  75  As    where    testator,    after    mak- 

something  in  the  context  to  require  ing  certain  bequests  and  devises,  gave 

a    more    extended    application.      See,  "all    the    rest    of    my    estate — per- 

Andrews  v.   Applegate,   223   111.   535,  sonal"    to   his   four   sons,   and    in   a 
Warvelle  Abstracts — 27 


418  ABSTRACTS  OP   TITLE.  [§  389 

where  specific  mention  is  made  of  certain  property,  other  property 
not  alluded  to  or  covered  by  general  terras  will  not  pass7^ 

§  389.  Limitations  and  Remainders.  A  large  part  of  the  litiga- 
tion arising  out  of  testamentary  conveyances  is  occasioned  by  ques- 
tions relative  to  the  construction  of  limitations  and  remainders. 
The  subject  has  been  incidentally  discussed  in  several  of  the  pre- 
ceding paragraphs,  and  in  addition  to  what  has  been  there  said, 
but  little  can  be  stated  without  entering  into  the  matter  at  greater 
length  than  the  exigencies  of  this  chapter  will  permit.  Local  statutes 
are  very  effective  in  the  settlement  of  such  questions,  so  far  as  the 
validity  of  the  remainder  limited  is  concerned,  as  well  as  the  persons 
who  take,  when  particular  words  are  accorded  a  statutory  defini- 
tion. 

All  words  of  purchase,  as  ''children,"'''''  "issue,"  etc.,  create 
remainders  according  to  their  import,  while  "heirs"  when  con- 
.strued  as  a  word  of  purchase,  designates  not  only  the  persons  who 
are  to  take,  but  also  the  manner  and  proportions  in  which  they 
take.''*  The  utmost  liberality  is  displayed  in  the  reported  decisions 
construing  remainders,  and  the  circumstance  that  the  first  taker 
has  it  in  his  power  to  dispose  of  the  whole  estate  and  thus  defeat  a 
limitation  over,  is  not  of  itself  conclusive  that  the  expectant  estate 
is  void,  when  a  contrary  contention  appears  from  the  will.''^  The 
intention  of  the  testator  must,  in  all  cases,  be  carried  out  when 
such  intention  can  be  ascertained  from  the  language  employed  by 
the  will,  and  in  no  case  can  the  intention  thus  ascertained  be  de- 
feated by  a  technical  construction  of  the  language  so  employed.'" 

Limitations  to  survivors  have  produced  a  vast  amount  of  litiga- 
tion, but  the  questions  arising  under  such  a  devise  may  now  be 
considered  as  settled,  and  the  general  rule  seems  to  be  that  the 
word  "survivor"  is  to  be  taken  in  its  natural  and  literal  import, 
unless  the  context  plainly  indicates  a  different  intention,  and 
should  not  be  construed  as  equivalent  to  the  word  ' '  other. ' '  *^ 

codicil  stated   that  he   had   disposed  77Beacroft  v.   Strawn,   67   111.   28. 

of  his     "estate,  real  and  personal,"  78 Band  v.  Sanger,  115  Mass.  124. 

to  said  sons,  and  revoked  the  share  The    rules    of    descent    in   such    case 

left  to  a  certain  son,  lield,  that  the  are    presumed    to    be    the    intended 

court    could    not    supply    the    words  guide. 

"real   and"    before    "personal"    in  79  Terry  v.  Wiggins,   2  Lans.    (N. 

the  will,   and  that  testator  died   in-  Y.)    272;   Burleigh  v.  Clough,  52  N. 

testate  as  to  his  real  estate,  except  H.  267.     Compare  Clark  v.  Tennison, 

a  portion  by  another  clause  specifical-  33  Md.  85. 

ly   devised.      Graham   v.   Graham,   23  80  Terry   v.   Wiggins,   2   Lans.    (N. 

W.  Va.  36.  Y.)    272. 

76  Farish  v.  Cook,  48  Mo.  212.  M  This    is   the    construction    which 


§  391]  WILLS.  419 

Where  the  courts  have  given  the  word  ** survivor"  the  force  of 
"other,"  it  has  been  done  to  avoid  some  consequence  which  it  was 
very  certain  the  testator  could  not  have  intended.^^  This  is  a 
subject,  however,  upon  which  there  still  exists  much  diversity  of 
judicial  opinion  and  local  usage  must  be  resorted  to  when  ques- 
tions arise. 

§  390.  Devise  to  a  Class.  It  is  a  rule  of  the  common  law  that  a 
devise  to  a  class  of  persons  takes  effect  in  favor  of  those  who  con- 
stitute the  class  at  the  death  of  the  testator,  that  being  the  time 
when  the  will  first  speaks.  But  his  rule  has  been  greatly  modified  in 
many  States,  so  that  when  an  estate  is  devised  to  the  children  or 
other  relatives  of  the  testator,  the  lineal  descendants  of  a  devisee, 
who  dies  before  the  testator,  take  the  share  of  their  ancestor.*^ 
In  the  absence  of  such  a  statute,  however,  the  common  law  prevails 
and  only  those  who  are  living  at  the  time  the  devise  takes  effect 
are  entitled  to  participate.  Those  who  die  before  the  gift  becomes 
effective  are  not  regarded  as  ever  having  belonged  to  the  class,  and 
the  whole  estate  inures  to  the  survivors. 

§  391.  Gift  of  the  Income  of  Realty.  It  is  well  settled  that  a 
gift  of  the  income  of  land  or  of  the  ' '  rents  and  profits, "  or  * '  bene- 
fits" is,  in  effect,  a  gift  of  the  land  itself.**  Those  to  whom  the 
testator  has  given  the  income  for  life  will  take  a  life  estate,  and 
those  to  whom  he  has  given  the  perpetual  income  will  take  a  fee 
simple  estate.*^  Such  gift,  however,  to  accomplish  this  purpose 
must  be  without  qualification  or  restriction,  and,  in  order  to  deter- 
mine whether  there  is  such  qualification  or  restriction,  recourse 
must  be  had  to  the  whole  will,  with  the  view  of  ascertaining  the 
sense  in  which  the  terms  were  used  by  the  testator.  When  it  ap- 
pears from  other  parts  of  the  will  that  the  fee  is  otherwise  disposed 
of,  such  terms  can  not  be  held  to  convey  the  fee.'^ 

now    obtains    both    in    England    and  84  Johnson    v.    Johnson,    92    Tenn. 

the  United   States:    2   Jar.  on  Wills,  559. 

648;  2  Eedf.  on  Wills,  *372.  85  Eeed  v.  Eeed,  9  Mass.  372;  But- 

82Leeming     v.     Sheratt,     2     Hare  terfield  v.  Haskins,  33  Me.  392;  Earl 

(Eng.)    14;    2    Jar.    on   Wills,    658;  v.    Eowe,    35    Me.    414;     Collier    v. 

Consult    Passmore's   Appeal,    23    Pa.  Grimsey,  36   Ohio  St.   17;   Drusadow 

St.   381;   Moore  v.  Lyons,  25  Wend.  v.  Wilde,  63  Pa.  St.  170;  Morgan  v. 

119;     Martin    v.    Kirby,     11     Gratt.  Pope,  7  Coldw.   (Tenn.)  541. 

(Va.)    67.  86  Collier  v.   Grimsey,   36   Ohio   St. 

88  Jamison   v.    Hay,    46    Mo.    546;  17;     Morgan     v.     Pope,     7     Coldw. 

Smiley  v.  Bailey,  59  Barb.   80;    Eu-  (Tenn.)    541. 
dolph  V.  Eudolph,  207  111.  266. 


420  ABSTRACTS   OF    TITLE.  [§  392 

§  392.  Devise  with  Power  of  Disposition.  Where  an  estate  is 
•riven  to  a  person  generally  or  indefinitely,  with  a  power  of  dispo- 
sition, it  carries  the  fee,  nnless  the  testator  gives  to  the  first  taker 
an  estate  for  life  only,  and  annexes  a  power  of  disposition  of  the 
reversion.  In  tliat  case,  the  express  limitation  for  life  will  control 
the  operation  of  the  power,  and  prevent  it  from  enlarging  the  estate 
to  a  fee.  This  is  the  doctrine  laid  down  by  Kent  ^"^  and  the  English 
writers,**  and  substantially  followed  by  later  American  decisions.*^ 
The  question  often  arises  where  life  estates  are  created  by  implica- 
tion, as  where  the  testator  devises  property  generally,  without  a 
specification  of  the  quantity  of  interest,  and  adds  some  power  of 
disposition  with  a  remainder  or  limitation  over.  In  such  case, 
where  an  absolute  power  of  disposition  is  annexed  to  the  gift,  a 
limitation  over  is  of  no  effect,®®  but  where  the  power  of  disposal  is 
not  an  absolute  power,  but  a  qualified  one,  conditioned  upon  some 
certain  event  or  purpose,  and  there  is  a  remainder  or  devise  over, 
the  words  last  used  restrict  and  limit  the  words  first  used,  and 
reduce  what  was  apparently  an  estate  in  fee  to  an  estate  for  life 
only.®^ 

Where  there  is  a  devise  for  life,  in  express  terms,  a  power  of 
disposal  annexed  can  not  enlarge  it  to  a  fee;  ^^  nor  is  it  opposed  to 
any  rule  of  law  to  create  a  life  estate  with  a  power  to  sell  and 
convey,  and  limit  a  remainder  after  its  termination.®^  To  satisfy 
the  doubts  that  must  naturally  arise  in  construing  devises  of  this 
character,  it  is  necessary  that  the  entire  clause  relating  to  tlie  devise 
be  substantially,  and  in  many  cases  literally,  set  forth,  and,  as  the 
construction  will  often  be  influenced  by  other  parts  of  the  instru- 
ment, a  corresponding  treatment  will  be  required  of  all  such  por- 

87  4    Kent    Com.    *535.  MerriU  v.  Emery,  10  Pick.  512;  Jar. 

88  Cruise  Dig.  tit.  §38,  c,  13,  §5;  on  WiUs  (Bigelow),  *879.  A  devise 
Jar.  on  Wills  (Bigelow),  *873.  with   power   of   disposition,   although 

89  Ramsdell  v.  Eamsdell,  21  Me.  providing  for  an  ultimate  remainder 
288 ;  Jones  v.  Bacon,  68  Me.  34 ;  of  what  remains  undisposed  of  at 
Smith  V.  Bell,  6  Pet.  68;  Gifford  v.  the  death  of  the  first  taker,  will 
Choate,  100  Mass.  346 ;  Burleigh  v.  vest  a  fee,  or  a  right  to  convey  in 
Clough,  52  N.  H.  267;  Jackson  v.  fee:  Lyon  v.  Marsh,  116  Mass.  232. 
Bobbins,  16  Johns,  537;  Ayer  v.  92  Hamlin  v.  Express  Co.,  107  111. 
Ayer,    128    Mass.    575;    DoAvney    v.  443. 

Borden,    36    N.    J.    L.    460;    Benker  93  Ward   v.   Amorv',  4  Curtis,  425; 

V.   Jacoby,  36  Iowa,  273;   Hamlin  v.  Jar.     on     Wills      (Bigelow),     *873 ; 

Express  Co.,  107  111.  443.  Welsch  v.  Savings  Bank,  94  111.  191  ; 

90Eand    v.    Meir,    47    Iowa,    607;  Jassey  v.   White,   28   Ga.   295;    Dow- 

SeigAvald    v.    Seigwald,    37    111.    430;  ncy  v.  Borden,  36  N.  J.  L.  460.     A 

Rosebooni  v.  Roscboom,  81  N.  Y.  356.  different  rule  prevails  in  some  States: 

91  Stuart  v.  Walker,   72   Me.    145;  See  Hazel  v.  Hagan,  47  Mo.  277. 


§  392]  WILLS.  421 

tions  as  directly  or  indirectly  concern  the  particular  devise  under 
consideration. 

A  conveyance  by  a  devisee  for  life,  but  with  an  absolute  power 
of  disposal  of  the  reversion,  will  vest  in  the  grantee  of  such  devisee 
an  estate  in  fee,®*  while  in  case  the  power  has  not  been  exercised, 
the  land,  on  the  death  of  such  devisee,  goes  to  the  heirs  of  the  de- 
visor.®^ An  important  distinction  will,  however,  be  observed  be- 
tween an  absolute  and  unconditional  power  of  disposal  in  the  dis- 
cretion of  the  devisee  and  a  power  restricting  the  disposition  both 
as  to  time  and  manner.  The  devise  of  an  estate  for  life,  with  author- 
ity in  the  devisee  to  dispose  of  the  land  by  last  will  and  testament, 
does  not  convey  absolute  ownership,®^  nor  would  the  further  fact 
that  the  will  devising  same  charged  the  payment  of  the  debts  on 
the  devisee  be  sufficient  to  enlarge  the  life  estate  to  a  fee  simple.®''' 
The  right  of  testamentary  disposition  is  a  mere  power,  and  though 
the  authorities  are  not  altogether  harmonious  as  to  the  right  of 
the  devisee  to  exercise  such  power  by  deed,  it  would  yet  seem  that 
a  warranty  deed  in  fee  simple,  executed  by  the  devisee,  which  made 
no  reference  to  the  will  by  which  the  power  of  disposition  was  given, 
and  contained  no  evidence  of  an  intention  to  execute  the  power, 
conveys  only  the  life  estate  of  the  devisee.®*  The  question  seems  to 
turn  upon  the  fact  of  intention  in  the  donee  of  the  power  to  execute 
it,  and  when  there  are  co-existing  interests,  one  within  and  the 
other  without  the  power,  it  would  seem  that  the  intention  to  execute 
the  power,  whether  by  deed  or  will,  must  be  apparent  and  clear,  but 
that  intention,  however  manifested,  whether  directly  or  indirectly, 
positively  or  by  just  implication,  will,  when  established,  render  a 
conveyance  by  the  devisee  valid  and  operative.®®    No  state  of  facts, 

94  Funk  v.  Eggleston,  92  111.  515;  the  first  taker  for  life,  and  a  limita- 
Hazel  V.  Hagan,  47  Mo.  277;  Levy  tion  over,  any  general  expressions 
V.  Griffiths,  65  N.  C.  236;  Lyon  v.  apparently  giving  the  tenant  for  life 
Marsh,   116   Mass.   232.  an  unlimited  power   over  the   estnte, 

95  Fairman  v.  Beal,  14  111.  244.  but  which   do   not   in   express  terms 

96  Bryant  v.  Christian,  58  Mo.  98 ;  do  so,  must  be  regarded  as  referring 
and  see  Terry  v.  Wiggins,  2  Lans.  to  the  life  interest  only,  and,  there 
(N.   Y.)    272.  fore,    as    limited    by    such    interest. 

97  Dunning  v.  Van  Dusen,  47  Ind.  Welsch  v.  Bellville  Savgs.  Bank,  94 
423;    Jassey  v.   White,   28   Ga.   295;  111.   191. 

Jar.  on  Wills   (Bigelow),  *873.  99  Funk  v.   Eggleston,   92   111.   515. 

98  Dunning  v.  Van  Dusen,  47  Ind.  In  this  case,  the  subject  of  a  devise 
423;  Funk  v.  Eggleston,  92  111.  515.  for  life  with  power  of  disposition, 
It  may  be  laid  down  as  a  general  is  very  exhaustively  treated  in  a 
rule,  that  in  all  cases  where  by  the  learned  and  able  opinion  by  Baker, 
terms  of  the  will  there  has  been  an  J.  The  fundamental  principle  de- 
express    limitation    of    an    estate    to  ducible    from    the    English    decisions 


422 


ABSTRACTS    OF    TITLE. 


[§393 


in  an  exaininaton  of  title,  presents  graver  questions,  or  questions 
more  difficult  of  solution. 

§  393.  Indeterminate  Devise.  Owing  to  the  liberal  construction 
now  accorded  to  wills  as  well  as  sweeping  statutory  enactments 
relative  to  the  limitation  of  estates,  fewer  questions  will  now  arise 
in  regard  to  the  quantity  or  duration  of  estates  than  formerly. 
Wills  drawn  by  the  testator,  or  holographic  wills,  frequently  fail 


is  tlint  there  should  be  a  certain 
ascertainment  of  the  intention  of  the 
donee  of  the  power  to  act  under  the 
power.  Three  classes  of  cases  arose 
in  which  it  was  demonstrated  to  an 
absolute  moral  certainty  there  was 
an  intention  to  execute  the  power, 
and  these  were  (1,)  when  there  Avas 
a  reference  to  the  power;  or  (2,)  to 
the  subject  or  property  covered  by 
the  power;  or  (3,)  when  the  instru- 
ment would  be  inoperative  without 
the  aid  of  the  power.  The  cases  rang- 
ing themselves  in  one  or  the  other 
of  these  three  classes,  it  was  judi- 
cially announced  in  some  of  the  cases 
that  there  could  be  no  execution  of  a 
power  unless  the  case  fell  in  one  or 
the  other  of  these  three  classes.  See 
Sir  Edward  Clere's  case,  6  Coke,  17; 
Standen  v.  Standen,  2  Ves.  Jr.  589. 
But  in  furtherance  of  the  general 
rule  that  the  intention  of  the  testa- 
tor (in  case  of  disposition  by  will) 
is  the  pole  star  to  guide  in  the  inter- 
pretation, the  English  rule,  which  re- 
quires the  existence  of  one  of  the 
three  elements  above  enumerated,  is 
made  altogether  subordinate  and  sec- 
ondary in  its  character,  and  if  cir- 
cumstances arise  that  indicate  clearly 
the  intention  of  the  donee  to  work  by 
the  power,  the  artificial  rule,  pred- 
icated upon  former  experience,  must 
give  way,  and  the  primary  and  fun- 
damental rule,  which  requires  only 
that  the  intention  must  be  clear  and 
manifest,  will  prevail.  * '  The  main 
point,"  says  Mr.  Justice  Storj- 
(Blagge  V.  Miles,  1  Story,  427),  "is 
to  arrive  at  the  intention  and  object 


of  the  donee  of  the  power  in  the 
instrument  of  execution,  and  that 
lieing  once  ascertained,  effect  is  given 
to  it  accordingly.  If  the  donee  in- 
tends to  execute,  and  the  mode  be 
in  other  respects  unexceptionable, 
that  intention,  however  manifested, 
will  make  tlie  execution  valid  and 
operative. ' '  But  the  intention  must 
be  clear  and  apparent,  so  that  the 
transaction  is  not  fairly  susceptible 
of  any  other  interpretation.  If  it 
be  doubtful,  under  all  the  circum- 
stances, then  the  doubt  will  prevent 
it  from  being  deemed  an  execution 
of  the  power:  Blagge  v.  Miles,  1 
Story,  427 ;  Dunning  v.  Van  Dusen, 
47  Ind.  423.  Kent  says,  with  ref- 
erence to  the  execution  of  powers: 
"The  power  may  be  executed  with- 
out reciting  it,  or  even  referring  to 
it,  provided  the  act  shows  that  the 
donee  had  in  view  the  subject  of 
the  power. ' '  The  general  rule  of 
construction,  both  as  to  deeds  and 
wills,  is  that,  if  there  be  an  interest 
and  a  power  existing  together  in  the 
same  person  over  the  same  subject, 
and  an  act  be  done  without  particular 
reference  to  the  power,  it  wiU  be 
applied  to  the  interest,  and  not  to 
the  power.  4  Kent,  Comm.  (12th 
Ed.)  p.  334;  2  Wash.  Eeal  Prop. 
*325,  §  33.  The  subject  of  the  execu- 
tion of  powers  is  exhaustively  ex- 
amined in  Blagge  v.  Miles,  1  Story, 
427.  The  following  cases  are  also 
in  point:  Jones  v.  Wood,  16  Pa.  St. 
25;  Towles  v.  Fisher,  77  N.  C.  437; 
Brunswick  v.  Grossman,  76  Me.  577. 


§  394]  WILLS.  423 

to  express  clearly  such  testator 's  intentions,  and  as  they  are  usually 
copied  from  the  ever  ready  "form  book"  and  adapted  to  his  wants, 
they  not  infrequently  fail  to  expressly  define  the  nature  or  extent 
of  the  estate  he  seeks  to  convey. 

A  devise  indeterminate  in  its  terms  and  without  words  of  limi- 
tation, which,  standing  alone  and  unaided  by  statute,  would  create 
only  an  estate  for  life,  will  generally  be  enlarged  to  a  fee  by  the 
imposition  of  a  charge  upon  the  person  of  the  devisee,  or  on  the 
quantum  of  the  interest  devised  to  him ;  ^  but  not  if  the  lands  are 
merely  devised  subject  to  a  charge.^  Where  the  charge  is  on  the 
estate,  and  there  are  no  words  of  limitation,  the  devisee  takes  an 
estate  for  life  only,^  but  where  the  charge  is  on  the  person  of  the 
devisee  in  respect  of  the  estate  in  his  hands,  he  takes  a  fee  by  impli- 
cation.* If  the  charge  be  on  the  person  of  the  devisee,  the  amount 
is  unimportant  if  the  sum  is  to  be  paid  absolutely.^  But  this,  it 
will  be  understood,  applies  only  to  indefinite  devises.  Where  the 
estate  is  given  for  life  in  express  terms,  and  some  other  determinate 
estate  is  expressly  given  or  arises  by  necessaiy  implication  from  the 
language  of  the  devise  over,  the  rule  is  inoperative  to  enlarge  such 
an  estate  to  a  fee.^ 

§  394.  Devise  on  Condition  Precedent.  This  frequently  occurs 
where  land  is  given  on  condition  that  the  devisee  pay  certain 
legacies,  or  perform  certain  acts,  etc.,  and  performance  of  the  con- 
dition is  essential  to  the  vesting  of  the  estate.''^  Where  the  condi- 
tions are  limited  as  to  time,  and  are  not  performed  within  that 
time,  the  devise  does  not  take  effect,®  but  becomes  inoperative  and 
void.  A  devise  upon  condition,  therefore,  frequently  raises  an 
inquiry  in  pais  upon  the  examination  of  a  title  proffered  by  the 
devisee,  and  before  passing  or  accepting  same,'  a  requisition  should 

1  Tracy  v.  Kilborn,  3  Cush.  5  Colliers'  Case,  6  Eep.  16;  2  Jarm. 
(Mass.)  55;  Baker  v.  Bridge,  12  on  Wills,  171;  Jackson  v.  Merrill,  6 
Pick.  27;  Barheydt  v.  Barheydt,  20  Johns.  186;  Barheydt  v.  Barheydt, 
"Wend.  576.  20  Wend.  576;  Jackson  v.  Harris,  12 

2  Hawkins  on  Wills,  134.  Wend.   83. 

3  Fox  V.  Phelps,  17  Wend.  393.  By  6  Jarm.  on  Wills,  173;  Groves  v. 
force  of  the  statute  a  general  devise  Cox,  40  N.  J.  L.  40. 

will    pass    all    the    testator's    estate,  7  Nevius   v.    Gourley,    95    111.    206. 

including  the   fee,  unless  a  contrary  A  court  of  chancery  will  never  vest 

intent   fairly  appears.  an  estate  when,  by  reason  of  a  con- 

4  Jackson  v.  Bull,  10  Johns.  148 ;  dition  precedent,  it  will  not  vest  in 
Funk  V.  Eggleston,  92  111.  515;  Mer-  law:  Id. 

ritt    V.    Brantly,    8    Fla.    226;    Cook  8  Nevius    v.    Gourley,    97    111.    356 

V.  Holmes,  11  Mass.  528;  Wait  v.  (2d  hearing);  Den  v.  Messenger,  33 
Belding,  24   Pick.   129.  N.  J.  L.  490. 


424 


ABSTRACTS   OF    TITLE. 


[§395 


be  made  for  further  information  relative  to  the  due  performance 
of  the  condition. 

§  395.  Conditional  Devise — Marriage.  Estates  for  life  are  fre- 
quently devised  to  surv'iving  husbands  or  wives,  subject  to  a  de- 
feasance in  the  event  of  a  second  marriage,  and  occasionally  un- 
married people  are  made  the  objects  of  such  testamentary  bounty 
so  long  as  they  remain  single.  A  title  involving  such  an  estate, 
\vliether  olfered  by  the  life  tenant  or  remainderman,  demands  and 
sliould  receive  the  closest  scrutiny. 

The  rule  is  well  settled,  both  in  England  and  this  country,  that 
conditions  in  general  restraint  of  marriage,  wliether  of  man  or 
woman,  are  void  in  law,  being  against  public  policy.*  But  this 
rule  does  not  extend  to  special  restraints,  such  as  against  marriage 
with  a  particular  person,  or  before  attaining  a  reasonable  age,  or 
without  consent.  Nor  is  it  ever  extended  to  the  case  of  a  second 
marriage  of  a  woman;  but  in  all  such  cases  the  special  restraint 
by  condition  is  allowed  to  take  effect,  and  the  devise  over  will  be 
good  on  breach  of  condition.  A  condition,  therefore,  that  a  widow 
shall  not  marry,  is  by  all  the  authorities  held  not  to  be  unlawful.^" 
In  the  decided  cases  a  distinction  is  taken  between  those  where  the 


9  It  appears  from  the  early  English 
cases  that  this  doctrine  was  borrowed 
by  the  English  ecclesiastical  courts 
from  the  Koman  civil  law,  which  de- 
clared absolutely  void  all  conditions 
in  wills  restraining  marriage,  whether 
precedent  or  subsequent,  whether 
there  was  any  gift  over  or  not.  But 
the  courts  of  equity  found  themselves 
greatly  embarrassed  between  their 
anxiety  on  the  one  hand  to  follow  the 
ecclesiastical  courts,  and  their  desire 
on  the  other  to  give  more  heed  to  the 
plain  intention  and  wish  of  the  testa- 
tor as  manifested  by  the  whole  will. 
Thereupon  the  process  of  distinguish- 
ing commenced  for  the  purpose  of 
preventing  oVivious  hardships  arisinsf 
from  the  application  of  that  technical 
rule  to  particular  cases.  As  a  result 
there  has  been  ingrafted  upon  the 
doctrine  a  multitude  of  curious  refine- 
ments and  subtle  distinctions  respect- 
ing real  and  personal  estate,  condi- 
tions and  limitations,  conditions,  pre- 


cedent and  conditions  subsequent, 
gifts  with  and  without  valid  limita- 
tions over,  and  the  application  of  the 
rule  to  widows  and  other  persons.  In- 
deed it  may  be  said  of  the  decisions 
upon  the  subject  that  "the  more  we 
read,  unless  we  are  very  careful  to 
distinguish,  the  more  we  shall  be  con- 
founded."  The  whole  subject  as  to 
what  conditions  in  restraint  of  mar- 
riage shall  be  regarded  as  valid  and 
what  as  void  would  seem  to  be  in- 
volved in  great  uncertainty  and  con- 
fusion both  in  England  and  in  this 
country.  There  is  clearly  discernible 
however,  through  all  the  decisions  of 
later  times,  an  anxiety  on  the  part  of 
the  judges  to  limit  as  much  as  pos- 
sible the  rule  adopted  from  the  civil 
law. 

lOBostick  V.  Blades,  59  Md.  231; 
Clark  V.  Tennison,  33  Md.  85;  Lit- 
tle V.  Giles,  25  Neb.  313;  Knight  v. 
Mahoney,  152  Mass.  523. 


§  397]  WILLS.  425 

restraint  is  made  to  operate  as  a  condition  precedent,  and  those 
where  it  is  expressed  to  take  effect  as  a  condition  subsequent,  and 
the  decisions  have  generally  been  made  to  turn  upon  the  question, 
whether  there  be  a  gift  or  devise  over  or  not.  But  if  the  devise  be 
to  a  person  until  he  or  she  shall  marry,  and  upon  such  marriage 
then  over,  this  is  a  good  limitation  as  distinguished  from  condition ; 
as  in  such  case  there  is  nothing  to  carry  the  interest  beyond  the 
marriage.  There  can  be  no  doubt,  therefore,  that  marriage  may  be 
made  the  ground  of  a  limitation  of  estate,  either  ceasing  or  com- 
mencing, and  this,  whether  the  devisee  be  man  or  woman,  or  other 
than  husband  and  wife. ^^ 

§396.  Contingent  Remainders.  Under  devises  similar  to  those 
mentioned  in  the  preceding  paragraph,  many  questions  will  arise 
relative  to  the  devise  over,  which,  according  as  the  phraseology 
used,  will  be  either  a  vested  or  contingent  remainder.  These 
questions  are  of  great  importance.  The  examiner  should,  there- 
fore, exercise  the  greatest  care  in  transcribing  all  devises  of  this 
character,  and  for  greater  certainty  it  is  recommended  that  they 
be  presented  with  little  or  no  abbreviation.  The  essence  of  the 
contingent  remainder  is,  that  it  is  limited  to  take  effect  on  an  event 
or  condition  that  may  never  happen  or  be  performed,  or  which  may 
not  happen  or  be  performed  until  after  the  determination  of  the 
preceding  particular  estate. ^^  Thus  where  a  devise  over  operates  at 
the  death  or  marriage  of  the  first  de\dsee  to  such  of  testator's 
children  as  shall  then  be  living,  this  would  give  a  contingent  re- 
mainder to  the  children  living  when  such  contingency  of  death 
or  marriage  happened.  The  children  of  the  testator  who  may 
have  died  after  the  testator  and  prior  to  the  happening  of  the 
contingency  would  take  no  estate,  nor  would  their  heirs,^^  and 
the  fact  that  the  words  "to  them,  their  heirs,"  etc.,  followed  the 
mention  of  the  children  would  not  affect  the  result,  for  such  words 
do  not  describe  the  devises  but  only  the  quantity  of  their  estate, 
and  merely  show  the  estate  taken  by  the  previous  words  to  be  a 
fee." 

§  397.  Contingent  Reversion.  A  contingent  reversion,  so  called, 
may  be  created  either  by  deed  or  will,  but  more  frequently  occurs 
under  the  latter.    It  is  not  strictly  a  reversion,  however,  but  rather 

llBostick  V.   Blades,  59  Md.   231;  13  Olney  v.  Hall.  21  Pick.  311;  Em- 
Arthur  V.   Cole,  56  Md.   100;   Brown  mison  v.  Whitelsey,  55  Mo.  254. 
V.  Brown,  41  N.  Y.  507.  14  Thompson     v.     Ludington,      104 

12Bou.  Law  Diet.  435.  Mass.  193. 


426  ABSTRACTS   OF    TITLE.  [§  397 

a  possibility  of  reinvcsturc  in  the  grantor  or  his  lieirs,  and  ocfuirs 
where  a  conveyance  is  made  to  one  for  life  or  years  wilh  a  con- 
tingent remainder.  Thns,  in  ease  of  a  devise  to  an  ninnarricd 
woman,  and  to  the  "heirs  of  her  body"  or  "children;"  here  the 
devisee  named  would  take  a  life  estate  only,  while  a  contingent 
remainder  is  created  in  favor  of  her  specified  heirs,  who,  when 
born,  would  take  the  fee.  The  will  in  such  case,  effectual!y  divests 
the  heirs  of  the  testator  of  all  estate  but  a  contingent  reversion, ^^ 
dependent  upon  the  devisee's  djdng  without  issue. ^® 

§  398.  Devise  to  Married  Woman.  In  a  former  chapter  ^'^  tiie 
subject  of  conveyances  to  married  women  was  quite  fully  dis- 
cussed and  the  general  principles  there  laid  down  will  api)ly 
with  equal  force  to  a  devise  by  will.  The  general  rule  of  con- 
struction, in  the  absence  of  statutory  provisions  to  the  cojitrary, 
is,  that  in  order  to  exclude  the  marital  rights  of  the  husbaiid  from 
attaching  to  property  coming  to  the  wife  during  coverture,  or  be- 
longing to  her  at  the  time  of  marriage,  an  intention  on  the  part  of 
the  testator  to  vest  in  the  wife  a  separate  estate  ought  to  appear 
from  the  terms  or  provisions  of  the  will  so  clearly  as  to  be  beyond 
the  reach  of  reasonable  controversy.^^  This  is  accomplished,  in 
most  cases,  by  the  insertion  of  technical  words,  as  "sole  and  sepa- 
rate use,"  or  other  words  of  similar  import,  while  the  same  end 
may  be  attained  by  provisions  excluding  the  marital  rights  of  the 
husband,  or  by  giving  to  the  wdfe  powers  concerning  the  estate 
inconsistent  with  the  disabilities  of  coverture.^^  The  statute,  how- 
ever, is  a  potent  factor  in  solving  questions  of  this  character.  In 
a  majority  of  the  States  the  common  law  disabilities  of  coverture 

15  Strictly  speaking  there  is  no  same  may  be  asserted  by  the  heirs 
such  a  thing  as  a  contingent  rever-  of  such  rcsiduarj'  devisee  after  his 
eion.  What  is  really  meant  by  that  death:  Clapp  v.  Stoughton,  10  Pick, 
phrase  is  a  possibility  of  reverter,  but  462.  This  doctrine,  however,  does  not 
in  practice  the  term  has  acquired  a  coincide  with  the  common  law  rules 
currency  in  the  manner  indicated  in  relative  to  naked  possibilities. 

the   text   and   is   constantly   so   used  17  See  Chap.  XVI. 

both  by  courts  and  writers.  18  Schouler    Dom.     Rel.     (2d    Ed.) 

16  Frazer  v.  Supervisors  Peoria  Co.,  189 ;  2  Perry  on  Trusts,  §  647 ;  Hill 
74  111.  282;  2  Bl.  Com.  164;  Blair  v.  on  Trustees,  611. 

Vanblarcum,  71  111.  290.    This  rever-  19  Vail  v.  Vail,  49  Conn.  52.     The 

sionarj-  interest  may  itself  be  the  sub-  statutes  now  in  force  in  most  of  the 

ject  of  devise:    Austin  v.  Cambridge-  States  will  afford  all  the  protection 

port,    21    Pick.    215;    and    will   pass  that  was  formerly  sought  to  be  at- 

under  a    residuary   clause:     Steel   v.  tained  by  testamentary  provisions. 
Cook,  1   Met.  281:   and  the  right  to 


§  399]  WILLS.  427 

have  ceased  to  exist,  and  in  those  States  the  foregoing  remarks 
have  no  application. 

§  399.  Devises  to  Executors  in  Trust.  It  is  a  rule  in  equity, 
that  the  language  employed  in  devises  in  trust  must  be  such  as 
to  show  that  the  object  is  certain  and  well  defined,  and  that  the 
beneficiaries  be  either  named,  or  capable  of  easy  ascertainment 
within  the  rules  of  law  which  are  applicable  to  such  cases;  and 
further,  that  the  trusts  shall  be  of  such  a  nature  that  a  court 
can  direct  their  execution;  failing  in  this  the  property  will  fall 
into  the  residue  of  the  estate,^" 

Devises  in  trust  are  frequently  made  to  executors  to  promote 
some  educational,  charitable  or  religious  purpose,  the  beneficiary 
being  an  institution  devoted  to  the  furtherance  of  those  objects, 
though  it  is  not  uncommon  to  make  beneficial  devises  to  individuals 
in  the  same  manner.  It  is  usual,  though  not  necessary,  to  spe- 
cifically name  or  describe  the  intended  beneficiaries,  and  numerous 
authorities  sustain  devises  to  executors  or  trustees  which  confer 
upon  them  authority  to  divide  the  trust  estate  among  such  persons 
as  they  may  select  from  certain  classes  which  are  designated,  and 
among  such  children  or  relatives,  who  are  intended  to  be  provided 
for,  as  they  may  deem  proper.^i 

Where  the  devise  is  too  indefinite  to  give  certainty,  or  the  trust 
is  such  that  a  court  can  not  execute,  resort  is  usually  had  to  a 
court  of  chancery  for  a  construction  of  the  will,  and  where,  as  a 
result,  the  devised  property  falls  back  into  the  residuum,  such 
proceedings  become  a  necessary  link  in  the  chain  of  the  title  to 
such  particular  property.  A  devise  in  trust  for  such  object  of 
benevolence  and  liberality  as  the  trustee,  in  his  discretion,  shall 
approve,  would  have  the  effect  last  mentioned.^^  So,  also,  would 
a  power  of  appointment  to  one  to  give  or  devise  property  **  among 
such  benevolent,  religious,  or  charitable  institutions  as  he  may 
think  proper, "  ^^^  be  vague  and  indefinite.  A  power  of  disposition, 
to  such  members  of  a  specified  branch  of  a  family  as  the  trustee 
might  consider  most  deserving,  has  been  held  void,  for  the  same 
reason,'^*    A  direction  to  give  a  fund  in  "private  charity"  is  too 

20  Holmes  v.  Mead,  52  N.  Y.  332;  McLoughliu  v.  McLoughlin,  30  Barb. 
Powell   on  Devises,   418;    Darling   v.        458. 

Sogers,   22  Wend.   494;   2   Story  Eq. .  22  Morice  v.  Bishop  of  Durham,  10 

Jur.  §  979;  Wheeler  v.  Smith,  9  How.  Ves.   (Eng.)   522. 

(U.  S.)  55.  23Norris  v.   Thompson's  Exrs.,   19 

21  Power  V.  Cassidy,  79  N.  Y.  602;  N.  J.  Eq.  307. 

Bull  V.   Bull,   8   Conn.   48;   Norris  v.  24  Stubbs  v.  Sargon,  3   Myl.  &  Cr. 

Thompson's  Exrs.,  19  N.  J.  Eq.  307;        (Eng.  Ch.)   507. 


428  ABSTRACTS   OP   TITLE.  [§  399 

indefiuite,^^  or  to  give  what  tliey  might  choose,^^  but  when  the 
beneficiaries  are  capable  of  identification,  although  not  named,  the 
trust  will  yet  be  valid,  and  a  testator  may  commit  to  competent 
persons  the  power  to  designate  who  of  certain  persons  shall  par- 
ticipate in  a  specified  portion  of  his  estate,  and  in  w'hat  propor- 
tions the  property  shall  be  divided.^' 

§  400.  Gift  to  Devisee  by  Description.  The  observations  of  the 
last  section  are  in  a  measure  applicable  to  direct  gifts,  for  a  devi- 
see, whether  a  corporation  or  a  natural  person,  may  be  desig- 
nated by  description,  as  well  as  by  name.^^  It  is  only  necessary 
that  the  description  of  the  devisee  be  by  words  that  are  sufficient 
to  denote  the  person  meant  by  the  testator,  and  to  distinguish  him 
from  all  other  persons.**  In  such  cases,  how^ever,  a  judicial  con- 
struction will  be  necessary  in  order  to  fully  perfect  the  title  of 
the  imperfectly  designated  devisee,  and  the  decree  rendered  upon 
such  construction,  together  with  the  will,  forms  the  basis  of  the 
devisee's  claim  of  title.  Devises  to  corporations  are  particularly 
subject  to  the  rule  above  stated,  as  the  testator,  through  inad- 
vertence, ignorance,  or  mistake,  frequently  fails  to  insert  the 
strictly  legal  name  of  the  corporation.  Parol  evidence  is  always 
admissible  to  remove  latent  ambiguities,  and  where  there  is  no 
person  or  corporation  in  existence  precisely  answering  to  the  name 
or  description  in  the  will,  parol  evidence  may  be  given  to  ascer- 
tain who  was  intended  by  the  testator.  "A  corporation,"  says 
Allen,  J.,  "may  be  designated  by  its  corporate  name,  by  the  name 
by  which  it  is  usually  or  popularly  called  and  known,  by  a  name 
by  which  it  was  known  and  called  by  the  testator,  or  by  any  name 
or  description  by  which  it  can  be  distinguished  from  every  other 
corporation;  and  when  any  but  the  corporate  name  is  used,  the 
circumstances  to  enable  the  court  to  apply  the  name  or  description 
to  a  particular  corporation  and  identify  it  as  the  body  intended, 
and  to  distinguish  it  from  all  others  and  bring  it  within  the  terms 
of  the  will,  may,  in  all  cases,  be  proved  by  parol. "^*' 

26  Ommanny  v.  Butcher,  1  T.  &  R.  29  Button   v.   Am.   Tract   Soc  'y,   23 

(Eng.  Ch.)  260.  Vt.  336;  McAllister  v.  McAllister,  46 

26  Wetmore  v.  Parker,  52  N.  Y.  450.  Vt.    272 ;    Minot   v.    Curtis,    7    Mass. 

27  Williams  V.  Williams,  4  Seld.  (N.  441;  Holmes  v.  Mead,  52  N.  Y.  332; 
Y.)    548;    Owens    v.    Miss.    Soc,    14  Gardner  v.  Heyer,  2  Paige,  11. 

N.   Y.   386;    2   Redf.   on  Wills,   779;  80  Lefevre  v.  Lcfevre,  59  N.  Y.  434 ; 

White  V.  Fisk,  22  Conn.  31;   Lefevre  St.  Luke's  Home  v.  Asso'n  for  Indi- 

V.  Lefevre,  59  N.  Y.  434.  gent  Females,  52  N.  Y.  191. 

28  Lefevre  v.  Lefevre,  59  N.  Y.  434. 


§  402]  WILLS.  429 

§  401.  Precatory  Trusts.  Precatory  trusts  grow  out  of  words 
of  entreatj^  wish,  expectation,  request,  or  recommendation  fre- 
quently employed  in  wills,  and  the  authorities,  both  English  and 
American,  are,  in  the  main,  harmonious  in  declaring  that  a  trust 
will  be  created  by  such  words  as  "hope,"  "wish,"  "request,"  etc., 
if  they  be  not  so  modified  by  the  context  as  to  amount  to  no  more 
than  mere  suggestions  to  be  acted  on  or  not  according  to  the  caprice 
of  the  immediate  devisee,  or  negatived  by  other  expressions,  indicat- 
ing a  contrary  intention.  But,  to  effect  this  result,  both  the  sub- 
ject and  object  must  be  certain.^i  An  absolute  gift  to  one  person, 
accompanied  with  a  request  to  appropriate  a  particular  sum  to  an- 
other person,  creates  in  the  immediate  devisee  a  trusteeship,  to  the 
extent  of  such  sum,  nor  does  the  absolute  gift  contravene  either  an 
express  or  implied  trust  annexed  to  the  gift,  as  it  is  a  common 
thing  to  invest  the  legal  title  and  trusteeship  in  the  same  person 
who  is  to  receive  the  benefit  in  the  event  of  a  failure  of  the  trust. 
It  is  equally  well  settled,  however,  that  a  mere  direction  by  a 
testator,  that  a  devisee  shall  pay  a  legacy,  does  not  thereby  create 
a  charge  on  the  land;  to  accomplish  this  there  must  be  express 
words,  or  necessary  implication  from  the  whole  will,  that  such  was 
the  intention.^2 

There  has  been  a  tendency  manifested  by  some  courts  to  restrict 
the  application  of  this  rule,  or  to  qualify  it,  and,  in  some  instances, 
to  reject  it  altogether,  and  to  adopt,  as  more  reasonable,  the  pre- 
sumption that  words  precatory  in  form  are  meant  to  imply  a  dis- 
cretion in  the  donee,  and  should  be  so  construed  unless  clearly 
shown  to  be  used  in  an  imperative  sense  from  other  parts  of  the 
will ;  ^2  but  the  weight  of  authority  sustains  the  principles  first 
stated,  and  precatory  words  are  generally  held  to  be  creative  of 
trusts,  when  the  contrary  does  not  appear  from  the  context  or  by 
necessary  implication.^* 

§  402.  Perpetuities.  Attempts  are  frequently  made  in  wills, 
though  seldom  in  deeds,  to  create  what  the  law  regards  as  per- 
petuities, and  this  occurs  whenever  there  is  a  suspension  of  the 
power  of  alienation  for  a  longer  period  than  a  life  or  lives  in  being 

31Bohon  V.  Barret's  Ex'r,  79  Ky.  nock's  Estate,  20  Penn.  St.  268;  Wal- 

378;   Hill  on  Trustees,  92;  Perry  on  ter's  Appeal,  95  Penu.  St.  305;  Tay- 

Trusts,  4;  Gilbert  v.  Chapin,  19  Conn.  lor  v.  Dodd,  58  N.  Y.  335;  Read  v. 

342.  Gather,  18  W.  Va.  263. 

32  Cable's  Appeal,  9  Reporter,  57;  SSPennock's  Case,  20  Pa.  St.  272. 

Lupton  V.  Lupton,  2  Johns  Ch.  614;  34  Reed's   Adm 'r  v.  Reed,  30   Ind. 

Chapin  v.  Gilbert,  19  Conn.  342;  Pen-  313;  Warner  v.  Bates,  98  Mass.  274. 


430  ABSTRACTS   OP   TITLE.  [§  402 

at  the  creation  of  the  estate,^^  or  of  such  lives  in  being  and  twenty- 
one  years  and  nine  months  at  the  farthest,^^  the  rule  varying  some- 
what in  different  States.  In  construing  dispositions  of  property 
with  reference  to  the  statute  against  perpetuities,  the  rule  is  settled 
that  any  limitation  is  void  as  in  violation  of  the  statute,  by  which 
the  suspension  of  the  power  of  alienation  will  not  necessarily,  under 
all  possible  circumstances,  terminate  within  the  prescribed  period. 
It  is  not  enough  that  it  may  terminate ;  it  must,  and  if  by  any  pos- 
sibility, the  vesting  of  the  estate  may  be  postponed  beyond  the 
statutory  period,  the  limitation  will  be  void.^'  In  all  eases,  where 
the  limitation  is  void  as  being  too  remote,  the  will  should  be  con- 
strued as  if  no  such  clause  were  in  it,  and  the  first  taker  will  hold 
his  estate  discharged  from  the  limitation  over.^s 

§  403.  Lapsed  Devise.  When  a  devisee  named  in  a  will  dies  dur- 
ing the  lifetime  of  the  testator,  the  devise  is  said  to  lapse;  that  is, 
it  does  not  go  to  the  heirs  of  such  deceased  devisee,  but  falls  back 
into  the  estate  of  the  testator.  The  rule,  though  frequently  ac- 
knowledged to  be  productive  of  great  hardship,  and  to  be  often 
contrary  to  the  intention  of  the  testator,  is  too  firmly  established 
to  be  questioned.  It  is  regarded  as  a  rule  of  necessity,  and  merely 
amounts  to  this :  That  if  there  be  no  devisee,  there  is  in  effect  no 
devise.^*  The  statute,  in  some  States,  has  slightly  modified  this 
rule,  particularly  w^here  the  devise  is  to  children,  but  in  the  absence 
of  such  statutes  the  rule  seems  to  be  inflexible. 

§  404.  Devises  for  the  Payment  of  Debts.  Land  devised  to 
trustees  for  the  payment  of  debts  and  legacies  is  usually  regarded 
in  equity  as  money ,*°  but  the  heir  at  law  has  a  resulting  trust  in 
such  land,  after  the  debts  and  legacies  are  paid,  and  may  restrain 
the  trustee  from  selling  more  than  is  necessary  to  pay  such  debts 
and  legacies ;  or,  he  may  pay  them  himself,  and  have  conveyance  of 
that  portion  of  the  land  not  sold  in  the  first  case,  and  the  whole  in 
the  latter,  which  property  \vill,  in  either  case,  be  land  and  not 
money .*^  Equity  will  extend  the  same  privilege  to  the  residuary 
legatee.*^ 

35Schettler  v.  Smith,  41  N.  Y.  328;  38  Wood  v.  Griffin,  46  N.   H.   234; 

Knox  V.  Jones,  47  N.  Y.  389.  Anderson  v.  Grable,  1  Ark.  136. 

86  Stephen   v.   Evans,   30   Ind.    39;  39  Davis '  Heirs  v.  Taul,  6  Dana,  52. 

see  1  Jar.  on  Wills,  226.  40  Craig  v.   Leslie,   3   Wheat.   463 ; 

37  Schettler  V.  Smith,  41  N.  Y.  328;  Story  Eq.  §   552;   Dill  v.  Wisner,  88 

Stephens  v.  Evans,  30  Ind.  39;  Lor-  N.  Y.  153. 

rillard  v.  Coster,  5  Paige,  172 ;  Haw-  41  Craig  v.  Leslie,  3  Wheat,  463. 

ley  V.  Northampton,  8  Mass.  3.  42  Craig  v.  Leslie,  3  Wheat.  463. 


§405]  '         WILLS.  431 

A  mere  charge  upon  land  stands  upon  a  different  footing,  and 

the  executor  possesses  no  power  to  sell  or  dispose  of  the  land  in 

such  case  except  by  license  or  direction  of  the  probate  court.*'    The 

land  in  the  hands  of  the  devisee  is  burdened  by  the  charge,**  and 

should  he  renounce  the  devise  such  land  will  descend  to  the  heir 

at  law  subject  to  the  charge;*^  but  the  executor  having  no  status 

as  a  trustee,  takes  no  interest  in  same,  and  no  power  can  be  implied 

from  the  mere  charge  of  the  debts  and  legacies  upon  the  lands 

devised.*^ 

* 

§  405.  Charges  on  Lands  Devised.  Real  estate  is  not,  as  of 
course,  charged  with  the  payment  of  legacies.  It  is  never  so 
charged  unless  the  testator  intended  it  should  be,  and  that  intention 
must  be  either  expressly  declared,  or  fairly  and  satisfactorily  in- 
f eiTed  from  the  language  and  dispositions  of  the  will.*'  Llere  direc- 
tions to  pay  debts  and  legacies  are  not  sufficient  to  create  a  charge,*' 
but  where  the  testator  devises  his  real  estate,  after  the  payment  of 
debts  and  legacies,  or  with  a  direction  that  debts  and  legacies  shall 
be  first  paid,  then  the  real  estate  is  charged  ^\'ith  the  payment  of 
them  and  they  become  liens  upon  the  land.*®  If  the  devisee  accepts 
the  devise,  he  becomes  personally  liable  for  the  legacieSj^"  which 
still  remain,  however,  a  charge  upon  the  land.^^  When  the  same 
sentence  or  clause  by  which  land  is  de\ised  imposes  on  the  devisee 
the  duty  of  paying  an  annuity,  and  no  other  fund  is  provided  out 
of  which  the  payment  is  to  be  made,  the  annuity  is  a  charge  upon 
the  land ;  ^^  and  in  like  manner,  where  a  testator,  without  creating 
an  express  trust  to  pay  legacies,  makes  a  general  residuary  disposi- 

43  Dill  V.  Wisner,  88  N.  Y.  153.  51  "It  seems  to  be  well  settled," 

44Gridley  v.  Gridley,  24  N.  Y.  130;  says  Mr.  Eedfield,  "that  where  lands 

Harris  v.  Fly,  7  Paige,  421.  are  held  by  subsequent  bona  fide  pur- 

45  BirdsaU  v.  Hewett,  1  Paige,  32.  chasers  for  value,  but  who  are  obliged 

46  In  re  Fox,  52  N.  Y.  530.  to  trace  title  through  a  devise,  whero- 


47  Okeson  's  Appeal,  59  Pa.  St.  99 
Kirkpatrick  v.  Chestnut,  5  S.  C.  216 
Lupton  V.  Lupton,  2  Johns.  Ch.  614 


by  a  charge  is  created  upon  the  land 
for  the  pajinent  of  legacies,  such  pur- 
chasers will  be  constructively  affected 


Cable's  Appeal,  91  Pa.  St.  327.  Lega-  with  notice  of  such  charge,  and  equity 

cies  are  primarily  payable  out  of  the  will  enforce  it  upon  the  land  in  their 

personal  estate.  hands:"  2  Eedf.  on  Wills,  *210,  cit- 

48  Taylor  v.  Dodd,   58  N.  Y.   335 ;  ing  Harris  v.  Fly,  7  Paige,  421 ;  Wal- 
Walter's   Appeal,   95   Pa.   St.   305.  lington  v.   Taylor,   Saxton,  314;   and 

49  Lupton  V.  Lupton,  2  Johns.     Ch.  see   Aston  v.   Galloway,   3   Ired.   Eq. 
614;    Wood    v.    Sampson,    25    Gratt.  (N.  C.)   126. 

(Va.)  845.  62  Merrill  v.  Bickford,  65  Me.  118. 

50  Birdsall  v.  Hewlett,  1  Paige,  33  ; 
Burch  V.  Burch,  52  Ind.  136. 


432  ABSTRACTS   OP   TITLE,  [§  405 

tion  of  Ills  whole  estate,  blending  the  realty  and  personalty  together 
in  one  fnnd,  the  real  estate  is  constructively  charged  with  the 
legacies. ^^ 

In  every  instance,  therefore,  where  legacies  are  directly  or  con- 
structively charges  or  liens  upon  the  realty,  satisfactory  assurance 
must  be  given  that  the  legacies  have  been  paid  or  the  lien  released 
before  the  title  is  accepted  by  a  purchaser  from  the  devisee.  Fre- 
quently these  facts  wall  appear  from  the  executor's  final  report,  and 
in  the  abstract  of  this  document,  in  connection  with  the  probate 
proceedings,  statements  of  this  kind  should  always  be  shown. 

In  this  connection  an  important  distinction  should  be  noted,  with 
regard  to  the  estate  possessed  by  the  devise,  between  such  legacies 
as  constitute  a  personal  charge  upon  the  devisee,  and  such  as  are 
expressly  charged  upon  the  estate.  Where  an  estate  is  devised  sub- 
ject to  the  payment  of  legacies,  if  the  legacies  are  made  a  personal 
charge  upon  the  devisee,  an  acceptance  of  the  devise  operates  to 
make  such  legacies  a  personal  liability  of  the  devisee,  while  he  will 
take  the  estate  devised  as  a  purchaser  in  fee ;  but  if  the  legacies 
are  charged  upon  the  estate  devised,  the  devisee  does  not  take  as  a 
purchaser  for  value,  but  as  a  beneficial  devisee.^* 

§406.  Equitable  Conversion.  It  is  a  fundamental  i)rinciplo  in 
ocjuity,  long  established  and  universally  recognized,  that  where  a 
testator  directs  that  his  real  property  be  converted  into  money  on 
or  before  a  given  time,  it  becomes,  for  practical  purposes,  money, 
and  will  be  treated  as  personalty  from  the  moment  of  his  death.  In 
such  case,  therefore,  the  heir  takes  no  interest  in  the  laud,  Avhich  is 
held  by  the  executor  as  other  personal  property,  and  can  make  no 
conveyance  of  same  that  will  defeat  or  impair  the  rights  of  a  pur- 
chaser from  the  executor.  Yet  to  effect  this  change  the  intentioii 
of  the  testator  must  appear  by  unequivocal  declaration .^^  There 
must  be  an  imperative  and  unmistakable  direction  to  sell,  and  if 
the  power  to  sell,  or  the  sale  itself  is  coupled  with  terms  or  de- 
pendent upon  a  contingency,  there  is  no  conversion  until  the  terms 
have  been  complied  with  or  the  contingency  has  happened,^^  and, 
as  courts  are  always  averse  to  sanctioning  a  change  in  the  quality 
of  an  estate,  if  there  be  any  doubt  as  to  the  intention  of  the  testator 
the  original  character  of  the  property  wdll  be  retained.^''    The  policy 

53  Lewis  v.  Darling,  16  How.  1;  66  See,  Estate  of  Machemer,  140 
Nichols  V.  Postlethwaite,  2  Dall.  131;        Pa.  St.  544. 

Hill    on    Trustees,    860;    Gallagher's  57  Orrick   v.   Boehm,   49    Md.    104; 

Appeal,   48   Pa.   St.   121.  Peter    v.    Veberly,    10    Pet.    (V.    S.) 

54  Funk  V.  Eggleston,  92  HI.  515.  533. 
65  Duckcr  V.  Burnham,  146  HI.  9. 


§  408]  WILLS.  433 

of  the  law  favors  the  vesting  of  estates  and  the  provisions  of  a  will 
should  always  be  construed  as  creating  a  vested  estate  if  possible.^^ 

§407.  The  Residuary  Clause.  In  a  majority  of  wills  there  is 
inserted  at  the  close  a  general  devise  of  everything  that  the  testator 
has  not  succeeded  in  disposing  of  in  former  parts  of  the  will,  which 
is  called  the  residuary  clause.  This  portion  of  the  instrument 
should,  as  a  rule,  be  copied  entire,  as  it  is  often  of  vital  importance 
in  determining  questions  of  title  under  lapsed  devises  and  of  fixing 
the  ownership  of  lands  not  specifically  granted  or  alluded  to  else- 
where in  the  instrument.  Where  the  language  of  a  residuary  clause 
has  sufficient  scope  and  extent,  evincing  the  intent  of  the  testator  to 
take  up  and  carry  into  the  residuary  estate  all  of  his  estate  remain- 
ing at  his  death  undisposed  of  for  any  reason,  the  residuary  clause 
will  receive  and  pass  a  lapsed  legacy  and  devise,^^  as  well  as  such 
as  may  fail  for  want  of  use  of  proper  language  to  create  the  same, 
or  to  designate  the  devisee.^**  But  when  the  residuary  clause  does 
not  by  its  own  terms  take  in  a  lapsed  legacy  or  devise,  so  as  to 
disclose  the  intent  of  the  testator  to  pass  the  lapsed  estate  into  the 
residue,  the  rule  is  different.^^  Void  and  illegal  legacies  or  devises 
come  under  the  rule  first  above  stated,^^  ^^(j  generally,  unless  a 
contrary  intention  is  manifested,  the  residuum  will  take  and  pasJ» 
everything  of  the  nature  above  indicated. ^^ 

A  different  rule,  however,  applies  to  the  residue  itself,  for  if  a 
gift  of  the  residue,  or  any  part  of  it  fails,  whether  by  lapse,  illegal- 
ity, or  revocation,  to  the  extent  that  it  fails,  the  will  is  inoperative, 
and  the  subject  of  the  gift  passes  to  the  heirs  or  next  of  kin  accord- 
ing to  the  statute  of  descents.^* 

§  408.  Codicils.  A  codicil  is  defined  as  some  addition  to,  or 
(lualification  of,  a  last  will  and  testament.^^    Where  it  is  in  irrecon- 

58  Scofield  V.  Olcott,  120  111.  362.  the  lapsed  devise  descending  to   the 

59  Youngs  V.  Youngs,  45  N.  Y.  254 ;  heirs :  See  Orrick  v.  Boehm,  49  Md. 
Patterson   v.    Swallow,   8   Wr.    (Pa.)        2. 

490;  Hillis  v.  Hillis,  16  Hun  (N.  Y.)  63  Thayer   v.    Wellington,    9    Allen 

76.      Local    statutes    will    sometimes  (Mass.),    283.     The   residuary   clause 

materially  affect  the  doctrine  stated  will    carry   the    estate    devised    in    a 

in  the  text.  clause  which  the  testator  has  revoked 

60  Lovering  v.  Allen,  129  Mass.  97.  by  striking  it  out  of  his  will.    Biglow 

61  Yard  v.  Murry,  86  Pa.  St.  113.  v.   Gilbert,   123   Mass.   102. 

62  Burnet  v.  Burnet,  30  N.  J.  Eq.  64  Burnet  v.  Burnet,  30  N.  J.  Eq. 
595.     A  distinction  is  made  in  some  595. 

States  between  legacies   and   devises.  66  Bou.  Law  Diet.  285. 

The  legacy  falling  into  the  residuum ; 
Warvcllc  Abstracts — 28 


434  ABSTRACTS   OF    TITLE.  [§408 

cilable  coiiflit't  Avitli  the  Avill,  it  must  prevail  as  a  revocation,  since 
it  is  the  last  expression  of  the  testator's  intent  in  the  disposition  of 
his  property.*^  Usually,  however,  a  codicil  imports  not  a  revoca- 
tion, but  an  addition  to,  or  explanation,  or  alteration  of  the  will, 
in  reference  to  some  particular,  and  assumes  that  in  all  other  par- 
ticulars it  is  to  be  in  full  force  and  effect.^'  The  authorities  fully 
establish  the  proposition  that  a  codicil  which  does  not  in  terms 
revoke  a  clause  in  the  will,  but  modifies  it  in  some  of  its  features  en- 
tirely consistent  with  the  retention  of  its  other  provisions,  will  be 
allowed  to  have  that  i)artial  effect,  and  the  clause  thus  changed  will 
remain  as  the  embodiment  and  expression  of  the  testator's  intent, 
wiiile  if  duly  executed  with  all  the  formalities  required  by  law,  it 
will  operate  to  confirm  and  republish  the  rest  of  the  will,*^^  unless 
the  testator  declares  that  he  does  not  intend  that  it  shall  have  that 
effect.69 

It  will  thus  be  seen  that  the  codicil  plays  a  most  important  part 
both  in  the  disposition  of  the  property  and  in  the  matter  of  validat- 
ing that  which  has  preceded  it,  and  which,  by  reason  of  defective 
execution  or  other  circumstance,  has  become  inoperative^"  It  is 
an  established  rule  not  to  disturb  the  dispositions  of  the  wull  further 
than  is  absolutely  necessary  to  give  effect  to  the  codicil,'^  and  the 
intent  of  the  testator  is  always  sought  to  give  effect  to  both  instru- 
ments when  they  can  operate  in  perfect  harmony 7^  But  where  the 
absolute  and  unqualified  gift  in  the  codicil  is  incompatible  w^ith  the 
disposition  of  the  land  made  in  the  will,  and  must  have  a  revoking 
efficacy  or  be  itself  nugatory,  the  will  must  yield  to  the  codicil.''' 
A  codicil  depending  upon  the  body  of  the  Avill  for  interpretation  or 
execution  can  not  be  established  as  an  independent  W'ill,  Avhen  the 
vdW  itself  has  been  revoked  J* 

§  409.  Revocation.  The  question  of  revocation  will  arise  dur- 
ing the  examination  of  a  title,  if  at  all,  only  by  implication.  A 
proper  probate  disposes  of  all  questions  of  this  kind  and  establishes 

66  Hallyburton  v.  Carson,  86  N.  C.  70  Sec   Wms.   on   Executors,   97;    1 

200.  .J.'irm.  on  Wills,  78. 

BTWctmore    v.    Parker,    52    N.    Y.  71Jarm.   on  Wills,  343,  note. 

450.  72  nallyburton  v.  Carson,  86  N.  C. 

68  0 'Kara   on   Wills,   6;    Brown   v.  290. 

Clark,  77  N.  Y.  369;   Van  Cortlandt  73Wainwright    v.    Tuckerman,    120 

V.  Kip,  1  Hill,  590 ;  Mooers  v.  White,  Mass.    232 ;    Vaughan    v.    Bunch,    53 

6  Johns.  Ch.  375;   1  Jarm.  on  Wills,  Miss.   513. 

78.  74  Youse  v.  Forman,  5  Bush  (Ky.) 

69  Van    Cortlandt    v.    Kip,    1    Hill,  337. 
590. 


§410]  WILLS.  435 

the  will.  But  facts  and  circumstances  may  be  disclosed  which 
create  legal  inferences  and  when  such  is  the  case  the  duty  of  the  ex- 
aminer is  to  fully  investigate  and  solve  any  question  that  maj^  be  so 
presented.  A  change  of  condition  or  domestic  relation  after  the  mak- 
ing of  a  will  and  which  involves  new  or  different  moral  duties,  will 
generally  raise  a  presumption  of  change  of  intention  on  the  part  of 
the  testator.'''^  Hence,  the  marriage  of  a  feme  sole;  birth  of  issue; 
and  divorce,  under  certain  conditions,  may  all  tend  to  create  this 
presumption. 

§  410.  Formal  Requisites.  There  are  a  number  of  indispensable 
requisites  to  a  valid  will,  which,  though  of  the  highest  importance 
generally,  do  not  require  more  than  passing  mention  in  this  work. 
These  requisites  do  not  relate  to  form,  but  go  to  the  very  substance 
of  the  instrument.  They  relate  mainly  to  the  testamentary  capacity 
of  the  testator  as  dependent  on  soundness  of  mind,  etc.,  and  to  his 
surroundings  and  the  effect  of  fraud,  duress,  undue  influence,  and 
the  like.  All  of  these  questions,  however  important  they  may  be, 
do  not  arise  in  the  examination  of  a  title  derived  through  or  under 
a  will,  for  they  are  all  supposed  to  have  been  duly  investigated 
during  the  probate  and  satisfactorily  answered  before  the  will  was 
permitted  to  become  operative  as  a  conveyance. 

With  respect  to  the  strictly  formal  parts  a  very  simple  and  un- 
technical  document  will  be  sustained  as  a  will,  where  the  writing 
relied  on  has  been  executed  in  conformity  to  the  statute,  and  shows 
upon  its  face  a  declaration  by  the  testator  that  it  is  his  will.''^  The 
essence  of  a  will  is,  that  it  is  a  disposition  to  take  effect  at  death,''^ 
and  the  form  of  the  instrument,  therefore,  is  immaterial  if  its  sub- 
stance is  testamentary.'''^  The  statute  usually  requires  the  paper  to 
be  signed  by  the  testator,  but  the  signature  may  be  original  or  by 
adoption,'''^  and,  as  a  rule,  it  must  be  attested  by  two  or  more  sub- 
scribing witnesses,  who,  at  the  testator's  request,  affix  their  signa- 

75  4  Kent 's  Com.  521 ;  2  Greenl.  aa  a  will  and  not  as  a  deed :  Gillham 
Evid.  §  684.  v.  Mustin,  42  Ala.  365. 

76  3  Wash.  Eeal  Prop.  * 681;  Turner  77  Not  after  death,  as  the  books 
V.  Scott,  51  Pa.  St.  126;   Burlington  frequently  state. 

University  v.   Barrett,   22   Iowa,   60 ;  78  Wilson 's  Ex  'rs  v.  Van  Leer,  103 

Wall  V.  Wall.  30  Miss.  91.    Although  Pa.  St.  600. 

an  instrximent   be  in  the   form   of  a  79  A   mark   has   been   held   a   good 

deed,    and    called    such,    stiU    if    its  signature  even  when  the  statute  uses 

purpose    be    testamentary,   and    it   is  the  word  subscribed:    Van  Honswyck 

only  to  be  consummated  by  the  death  v.  Wicse,   44   Barb.   494;   Jackson  v. 

of  the  maker,  effect  will  be  given  to  it  Jackson,  39  N.  Y.  153. 


436  ABSTRACTS   OF    TITLE,  [§410 

tares  in  his  presence.®"  As  the  execution  and  publication  are  also 
matters  of  strict  proof  in  the  probate  court  tliey  may  be  presumed  to 
have  been  in  conformity  to  law  after  the  Avill  has  been  duly  pre- 
sented and  admitted  in  such  court.  Should,  however,  the  examiner 
observe  palpable  defects  of  form  they  should  be  presented  in  the 
abstract  that  proper  inquiries  may  be  founded  on  them. 

§411.  Abstract  of  Wills.  An  eminent  English  conveyancer®^ 
once  saitl,  that  he  could  sc-arcel}^  admit  of  a  will  being  abstracted  at 
all,  and  strongly  recommended  that  it  be  copied  instead,  in  order 
that  counsel  might  have  an  opportunity  of  judging  by  the  context 
as  well  as  by  the  particular  words  of  the  devise  or  bequest.®^  The 
reason  assigned  by  the  English  conveyancer  is  a  good  one,®^  yet  in 
preparing  the  abstract  of  a  will  it  is  not  usually  necessary  that  the 
entire  instrument  should  appear,  but  only  such  parts  as  have  special 
or  general  reference  to  the  property  in  question.  Modern  wills 
in  many  instances,  and  ancient  Avills  uniformly,  contain  a  preamble 
dedicating  the  testators'  souls  to  God,  expressing  the  soundness  of 
their  minds,  the  health  or  debility  of  their  bodies,  and  other  par- 
ticulars of  no  special  importance  and  which  have  no  necessary 
connection  with  or  relation  to  the  subject  of  the  examination,  and 
may  in  all  cases  be  safely  omitted.  The  bequests  and  gifts  of  per- 
sonalty are  always  omitted,  except  where  a  legacy  constitutes  a 
charge  upon  the  land,  in  which  case  it  becomes  material.  Devises 
of  realty,  other  than  the  subject  of  the  examination,  may  be  advan- 
tageously omitted,  but  the  residuary  clause,  though  couched  in 
general  terms,  should,  as  a  rule,  be  inserted. 

The  language  employed  by  the  will,  aside  from  the  strictly 
formal  parts,  should  be  closely  if  not  literally  followed,  as  well 
in  respect  to  the  propertj^  devised  as  the  particular  estate  therein 
granted.  The  essential  features  of  a  modern  will  consist  of  the 
parties,  testator,  legatees  and  devisees;  the  legacies  which  are  a 
charge  on  land;  the  specific  devises;  the  trusts  and  powers;  the 
appointment  of  executors;  the  residuary  clause;  and  the  execution 
and  attestation.®*     In  drawing  the  synopsis  tlie  general  form  of 

M  Consult  Hopper 's  Will,  1  Tuck.  erly  real  estate  wills  were  not  proved 

(N.  Y.  Sur.)   378;  Lawrence's  Will,  in   England. 

Id.    243;    Holloway   v.    Galloway,    51  84  Mr.  Preston  says  (with  reference 

111.  159.  to   the   method   of  abstracting  wills) 

81  Mr.  Barton.  the  points  to  be   attended   to  are  to 

82  Moore   on  Abst.   39.  show  to  whom  the  lands  are  devised ; 

83  This  observation  derives  addi-  the  words  used  in  description  of  the 
tional  force  from  the  fact  that,  form-  lands;    the    words    of    limitation    by 


§  412]  WILLS.  437 

presenting  conveyances  by  deed  is  followed  as  closely  as  may  be; 
the  particular  words  employed  in  creating  the  estates  devised  are 
given,  and  all  inartificial  expressions  rendered  with  literal  exact- 
ness. Imperfect  designation  of  persons  or  property,  and  manifest 
omissions,  errors  and  irregularities,  are  noted  in  the  same  manner 
as  in  case  of  deeds.  The  execution,  if  regular,  may  be  passed  with- 
out notice,  as  the  proof  of  probate  constitutes  proof  of  the  due  and 
proper  execution  and  publication  of  the  will,  yet  where  the  execu- 
tion is  manifestly  erroneous,  or  not  in  compliance  with  law,  it  is 
recommended  that  same  be  shown  as  fully  as  in  ease  of  defective 
execution  by  deed,  and  be  supplemented  by  the  special  proof 
offered  on  the  hearing  before  the  probate  court. 

§412.  Method  of  Arrangement.  There  are  two  methods  of 
showing  abstracts  of  wills :  one,  in  case  of  record  as  a  conveyance, 
as  an  independent  circumstance,  the  same  as  other  instruments  of 
conveyance,  and  forming  a  separate  link  in  the  chain ;  the  other,  in 
connection  with  the  proceedings  had  in  the  probate  court  relative  to 
the  proof  of  the  will  and  the  administration  of  the  estate.  Either 
method  may  be  adopted  as  wall  best  serve  the  examiner's  purpose, 
but  it  is  believed  the  former  method  possesses  advantages  over  the 
latter,  and  is  that  which  should  be  adopted  whenever  the  will  has 
been  recorded  as  directed  by  law.  In  the  event  of  the  first  named 
method  being  used,  the  proof  adduced  before  the  probate  court,  or  a 
summary  thereof,  should  also  be  appended,  such  proof  being  re- 
quired by  statute  to  be  recorded  with  the  will.  The  proceedings 
relative  to  the  settlement  of  the  estate  then  follow  as  a  separate 
showing.  When  the  latter  method  is  employed,  a  digest  of  the  will 
should  be  inserted  at  the  beginning  of  the  synopsis  of  the  proceed- 
ings. When  conveyances  have  been  made  by  heirs  or  devisees 
prior  to  probate  or  record,  the  chronological  arrangement  should 
follow  the  dates  of  execution,  rather  than  of  proof  or  record,  except 
in  the  case  of  post  obit  conveyances. 

which  the  estate  is  devised,  the  power,  to    the    devise    or   appointment ;    the 

if  any,  in  pursuance  of  which  the  de-  charges  imposed  on  the  devisee ;   the 

vise  is  made:   the  words  of  modifica-  indemnity,  if  any,  against  seeing  to 

tion,  or  of  severance  of  the  tenancy,  the  application  of  the  purchase  money, 

if  there  be  any;  the  words  of  quali-  or  mortgage  money;  such  powers,  if 

fieation  which  may  abridge  or  defeat  any,  as  are  material  to  the  title;  and 

the   estate;    the   uses  and   trusts,   if  when  leasehold  lands  are  the  subject 

any  are   created;    the  conditions,   or  of  the  title,  the  appointment  of  exe«- 

conditional  limitations  by  way  of  ex-  utors:  Prest.  on  Abst.  180. 
ecutory  devise,  or  otherwise,  annexed 


438 


ABSTRACTS   OP    TITLE. 


[§413 


§  413.  Practical  Examples.  Following  this  will  be  found  a 
practical  example  of  an  abstract  of  a  will  and  proof  of  probate. 
The  will  selected  is  of  the  most  simple  form,  and  no  attempt  has 
been  made  to  illustrate  special  clauses,  though  an  example  of  these 
occurs  in  the  form  given  in  connection  with  the  abstract  of  probate 
proceedings.  The  proof  of  probate  is  that  now  in  use  in  Wisconsin, 
IMinnesota  and  other  Avestern  States,  and  will  serve  to  indicate  the 
method  of  showing  these  matters  even  in  States  where  the  record 
of  proof  is  different  : 


Last  ^yill  and  Testament  ®^ 

of 
Thomas  W.  Watson, 

deceased. 


Dated  Oct.  10,  1880. 
Admitted   to  Probate,  May   15, 
1883. 

Recorded  July  1,  1883. 
Book  100,  page  550. 
Directs,  that  all  just  dchts,  in- 
cluding   funeral  expenses  and  expenses  of  administration,  he  paid 
by  his  executor.^^ 

Crives  and  bequeaths  to  his  wife,  Annie  Watson,  one  thousand 
dollars  annually,  to  be  paid,  etc.,  [set  out  such  legacies  as  constitute 
a  charge  on  the  land]  together  with  sundry  other  bequests  and 
legacies. 

Devises  and  bequeaths  to  his  son,  George  Watson,  etc.,  [set  out 
the  specific  devises.] 

Gives,  devises  and  bequeaths  all  the  residue  and  remainder  of 
his  estate  to,  etc.,  [set  out  the  residuary  bequests]. 

Appoints  John  Williams  his  executor,  etc.,  [note  the  trusts  and 
powers,  if  any] . 
Add  facts  of  execution.^'' 


*5  If  desired,  the  ordinary  caption 
of  a  deed  may  be  used;  as, — to — , 
the  nature  of  the  instrument  being 
indicated  by  its  name  in  the  margin. 
The  method  employed  in  the  example 
is,  however,  the  better  way. 

86  ' '  The  direction  of  payments  of 
debts  and  funeral  expenses, ' '  observes 
Mr.  Redfield,  ' '  is  now  merely  formal, 
except  that  as  it  may  sometimes  aid 
in  the  construction  of  a  will,  by 
showing  that  the  subject  of  the  testa- 
tor's debts  was  brought  distinctly  to 
his  mind,  at  the  time  of  executing  his 
wiD:"  1  Eedf.  on  Wills,  *67-4.     The 


direction  of  a  testator  to  his  executors 
to  pay  his  debts  docs  not  give  to  them 
a  power  of  sale  for  that  purpose,  or 
vest  them  witli  any  authority  for  their 
payment,  other  than  the  law  itself 
creates,  by  expressly  charging  all  the 
property  of  a  decedent  with  the  pay- 
ment of  his  debts,  whether  he  die 
testate  or  intestate.  Will  of  Fox,  52 
N.  Y.  530;  Harris  v.  Douglas,  64  111. 
466;  Carrington  v.  Manning's  Heirs, 
13  Ala.  611. 

87  The  examiner  will  notice  whether 
any  of  the  witnesses  are  named  in  the 
will  as  devisees  or  legatees,  and   in 


§  413]  WILLS.  439 

If  the  proof  of  the  will  is  appended,  as  is  usually  the  case,  this 
would  doubtless  be  sufficient  to  show  testator's  death,  but,  if  de- 
sired, a  note  embodying  such  information  may  be  appended,  thus: 

Note. — By  the  records  and  files  in  the  office  of  the  County  Court 
of  Kenosha  County,  Wis.,  it  appears  that  Thomas  W.  Watson 
died  on  or  about  April  28,  1883;  that  letters  testamentary 
were  granted  to  John  Williams,  May  15,  1883. 

Where  a  codicil  is  appended  it  should  be  abstracted  as  a  separate 
instrument  and  its  terms  fully  set  forth,  particularly  when  it  tends 
to  revoke  any  provision  of  the  will,  or  alters  the  prior  disposition 
of  the  real  estate  of  the  decedent.    In  such  case  say : 

Appended  to  the  foregoing  is, 

and  then,  as  in  case  of  the  original,  follow  in  the  margin  with, 

Codicil  to  the  last  will  and  testament,  etc., 

giving  the  date  and  substance  of  the  codicil.  With  all  wills  filed 
for  record  as  conveyances  the  law  requires  the  ' '  proof  of  probate ' ' 
to  be  also  filed.  Such  proof  is  generally  in  the  shape  of  a  certificate 
by  the  judge  or  clerk  of  the  probate  court,  and  a  synopsis  of  same 
should  immediately  follow;  thus. 

Appended  is: 

Proof  of  will. 
Certificate  Dated  July  1,  1883. 

by  Recites  that  on  the  15th  day  of 

Edward  Martin,  [May,    1883,    at    a    regidar    term 

County  Judge  of  Kenosha       of  the  County  Court  of  Kenosha 

County,  Wis.  County,  Wis.,  pursuant   to  notice 

duly  given  as  required  by  law,  William  Jackson  and  James  Smith, 

subscribing  witnesses  to  the  last  will  and  testament  of  Thomas  W. 

Watson,  late  of  the  County  of  Kenosha,  dec'd,  which  is  ^'hereto 

annexed,"  were  produced,  sworn  and  examined  (and  the  said  will 

being  contested,  and  other  witnesses  as  well  for  the  contestant  as 

for  the  proponent  of  said  will,  having  been  produced,  sworn  and 

case  of  a  correspondence  of  names  is  excluded  from  being  a  witness  to 
show  the  same.  As  a  rule,  any  per-  same,  or  else  the  provision  in  their 
son  taking  any  benefit  under  a  will       favor  is  rendered  void. 


440  ABSTRACTS   OF    TITLE.  [§413 

examincd),^^  and  proofs  having  heen  heard  before  said  court,  and 
the  court  hnving  thereupon  found  that  said  instrument  tvas  in  all 
things  duly  executed  as  his  last  will  and  testament  by  said  Thomas 
W.  Watson,  on  the  10th  day  of  October,  1880;  that  he  was  then  of 
full  age,  a7id  of  sound  mind,  and  that  said  instrument  was  duly 
subscribed  and  attested  (in  his  presence) }^ 

Thereupon  said  instrument  being  duly  proved^^  was  by  said 
court  duly  allowed,  and  probate  thereof  granted  as  and  for  the  last 
will  and  testament  of  said  Thomas  W.  Watsoti,  dec'd. 

Signed  by  said  Judge,  and  the  seal  of  the  Kenosha  County 
Court  affixed. 

§  414.  Probate  of  Wills.  Probate  of  a  -will  has  been  defined  as, 
the  proof,  before  an  oflSeer  authorized  by  law,  tliat  an  instrument 
offered  to  be  proved  or  recorded  is  the  last  will  and  testament  of  the 
deceased  person  whose  testamentary  act  it  is  alleged  to  be.®^  It  is 
the  authentication  of  the  instrument,  and  that  which  gives  to  it  its 
legal  effect  and  validity  as  a  conveyance,  and  nothing,  says  Lord 
Kenj'on,^''  "but  the  probate  or  letters  of  administration  with  the 
will  annexed,  are  legal  evidence  of  the  will,"  language  which  has 
been  repeated  and  approved  by  the  Supreme  Court  of  the  United 
States.^^  A  will,  therefore,  which  has  not  been  admitted  to  probate, 
though  admissible  perhaps  in  connection  with  proof  of  adverse 
possession,  is  not  evidence  of  title  in  a  court  of  law,^*  nor  would 
it  afford  constructive  notice  if  recorded. 

§  415.  Effect  of  Probate.  The  probate  of  a  Avill,  if  decreed  by  a 
court  of  competent  jurisdiction,  establishes  the  facts:     (1)  that  the 

88  This  of  course  depends  on  local  will  need  not  set  out  in  detail  the 
laws.  evidence    upon    which    the    will    was 

89  Where  a  will  is  properly  signed  proved.  If  conclusions  of  law  are 
l>y  the  testator  and  two  or  more  at-  stated,  it  is  sufficient :  Mosley  v. 
testing  witnesses,  both  of  whom  testi-  Wingo,  7  Lea   (Tenn.),  145. 

fy  that   they  were  present,  and  saw  91  Bou.    Law   Diet.    378;    Pettit   v. 

the    testator    sign   the    will    in    their  Black,  13  Neb.  142. 

presence,  or  that  the  testator  acknowl-  92  Bex  v.  Inhab.  of  Neatherseal,  4 

edged  same,  and  that  they  believe  he  T.  K.  (Eng.)  258. 

was  of  sound  mind  and  memory  at  the  93  Armstrong    v.    Lear,    12    Wheat. 

time  of  executing  it,  this,  in  the  ab-  175. 

.sence  of  any  proof  of  fraud,  compul-  94  Willamette,   etc.,   Co.   v.   Gordon, 

sion,    or   other   improper    conduct,    is  6  Oreg.  175;   Wood  v.  Matthews,   53 

sufficient  to  make  out  a  prima  facie  Ala.  1 ;  Pitts  v.  Melser,  72  Ind.  469 ; 

case  and  entitle  the  will  to  probate.  Sbumway  v.  Holbrook,  1  Pick.  114; 

Heirs  of  Critz  v.  Pierce,  106  111.  167.  Ochoa  v.  Miller,  59  Tex.  460;   Pettit 

90  The  certificate   of  probate  of  a  v.  Black,  13  Neb.  142. 


§  416]  WILLS.  441 

instrument  in  question  is  the  last  will  of  the  testator  and  that  it  was 
duly  executed  and  published  with  all  solemnities  required  by  law ; 
(2)  that  the  testator  at  the  time  of  executing  the  instrument,  was  of 
sound  and  disposing  mind  and  memory,  capable  of  understanding 
the  act  he  was  doing,  and  the  relation  in  which  he  stood  to  the 
object  of  his  bounty,  and  to  the  persons  to  whom  the  law  would 
have  given  his  property  if  he  had  died  intestate;  (3)  that  the  in- 
strument was  executed  without  fear,  fraud  or  undue  influence  by 
which  his  own  intentions  were  controlled  and  supplanted  by  those 
of  another;  (4)  that  he  executed  the  instrument  animo  testandi, 
with  an  understanding  and  purpose  that  it  should  be  his  last  will 
and  testament  ;^^  and  (5)  it  is  presumptive  evidence  of  the  death 
of  the  person  whose  will  it  purports  to  establish.^^  Such  decree  is 
generally  regarded  as  in  the  nature  of  a  judgment  in  rem^'^  and 
in  the  absence  of  statutory  provisions,  is  conclusive  as  against  all 
the  world,  as  to  the  validity  of  the  will,^*  and  affirms  the  title  of 
the  bneficiary  under  it  from  the  time  of  the  testator's  death,  relat- 
ing back  so  as  to  make  valid  whatever  has  been  previously  done, 
which,  under  the  will,  after  probate,  the  beneficiary  could  lawfully 
have  done.®^ 

But,  though  probate  establishes  the  sufficiency  of  the  will,  and 
confirms  the  claims  of  those  holding  under  it  so  far  as  to  make  it 
evidence  of  title,  it  does  not  determine  the  title  to  the  property,  nor 
establish  the  validity  of  any  devise  given  by  it,  the  will  having  no 
greater  effect  after  probate  than  other  legal  conveyances.^ 

§  416.  Foreign  Probate.  In  order  to  enable  a  devisee  of  lands 
under  a  will  probated  in  a  foreign  jurisdiction,  to  deduce  legal  title 
to  same  in  the  courts  of  the  State  where  the  land  is  located,  it  is 
frequently  necessary  that  the  will  be  also  probated  in  the  local 
courts.  This  matter  is  governed  by  statute  which  generally  pro- 
vides that  the  copy  of  the  will  presented  must  be  accompanied  by 
a  certificate  of  the  foreign  probate  and  duly  authenticated,  these 
together  constituting  the  one  instrument  or  subject-matter  to  be 

95  Barker  V.  Comins,  110  Mass.  477.        liams,    1   Lea    (Tenn.),   529;    Orr   v. 

96  Carroll   v.   Carroll,   6   Thomp.   &        O'Brien,  55  Tex.  149. 

C.    (N.   Y.)    294;    Belden   v.   Meeker,  99  Stuphen  v.   Ellis,  35  Mich.  446; 

47  N.  Y.  307.  Allaire  v.   Allaire,  37  N.  J.  L.  312; 

97  Hall  V.  Hall,  47  Ala.  290 ;  Crip-  Dublin  v.  Chadbourn,  16  Mass.  433. 
pen  V.  Dexter,  13  Gray  (Mass.),  330;  1  Fallon  v.  Chidester,  46  Iowa,  588; 
State  V.  McGlynn,  20  Cal.  233.  Greenwood  v.  Murray,  26  Minn.  259 ; 

98  Brock  v.  Frank,  5  Ala.  85;  Janes  Ware  v.  Wisner,  4  McCrary  (C.  Ct.), 
V.  Williams,  31  Ark.  175;   Tucker  v.  66. 

Whitehead,  58  Miss.  762,     In  re  Wil- 


442  ABSTRACTS   OF    TITLE.  [§  416 

acted  upon  under  the  statute;  and  all  are,  as  a  rule,  essential  to 
authorize  the  probate  court  to  exercise  jurisdiction.^  Whenever 
this  ancillary  probate  is  resorted  to  it  is  generally  allowed  as  a 
matter  of  course  and  without  inquiring  into  the  validity  of  the 
■will  or  the  sufficiency  of  the  proofs  upon  which  the  court  granting 
the  original  probate  acted,  provided  such  original  probate  was 
granted  by  a  court  of  competent  jurisdiction  and  is  properly 
authenticated.^ 

But  even  where  ancillary  probate  is  not  required  to  establish  a 
foreign  will  it  may  yet  be  essential  to  perfect  title  in  the  devisees. 
Thus,  a  creditor  of  a  decedent  is  not  required  to  go  into  a  foreign 
jurisdiction  to  prove  his  claim.  If  such  decedent  leaves  land  in  the 
State  of  the  creditor's  domicile  it  will  be  affected  by  the  statutory 
lieii  of  the  debt  and  may  be  sold  in  satisfaction  thereof.  Hence,  it 
may  often  become  necessary  or  expedient  to  probate  a  foreign  will 
for  the  sole  purpose  of  extinguishing  creditors'  liens,  and  where 
the  property  under  examination  is  valuable  this  course  can  never  be 
safely  omitted  unless  the  statute  has  run  against  possible  debts. 
In  any  event  an  attorney  examining  title  should  note  the  absence 
of  ancillary  probate  of  a  foreign  will  and  found  such  objections 
upon  the  fact  as  he  may  deem  proper. 

By  statutory  provision  in  many  of  the  states  an  exemplified 
copy  of  a  foreign  will,  or  of  the  record  thereof,  may  be  recorded  in 
such  states  for  the  purpose  of  perfecting  title  to  land  therein 
situated.  In  such  case  the  will  must  conform  to  local  laws  and 
where  such  conformity  appears  the  exemplified  copy  will  be  re- 
ceived as  presumptive  evidence  of  the  will  and  of  its  due  execution. 
As  a  rule,  the  record  exemplified  from  another  state  must  contain 
the  proofs  taken  on  the  probate.* 

It  follows,  therefore,  in  states  where  this  practice  prevails,  that 
copies  of  wills  and  exemplifications  of  foreign  probate  will  often  be 
met  with  on  the  records.  In  these  cases  no  ancillary  probate  has 
been  had  and  the  copy  is  filed  simply  to  evidence  a  legal  conveyance. 
Considerable  condensation  may  be  permitted  in  the  abstract.  The 
will,  or  so  much  thereof  as  may  be  necessary,  should  be  shown  in 
much  the   same   way   as   domestic   wdlls   in   probate   proceedings. 

2  Pope    V.    Cutler,    3-4    Mich.    150 ;  4  Slayton  v.  Singleton,  72  Tex.  209, 

Ward  V.  Gates,  43  Ala.  515..  9  S.  W.  876;  Lindley  v.  O'Eeily,  50 

8  Brock  V.  Frank,  51  Ala.  89;  Ap-  N.  J.  L.  636,  15  Atl.  379,  1  L.  R.  A. 

person  v.  Bolton,  29  Ark.  418;  New-  79;  Roscoe  v.  Lumber  Co.  124  N.  C. 

man  v.  Willetts,  52  lU.  98;  Russell  v.  42,  32  S.  E.  389. 
Hart,    87    N.    Y.    19;    Markwell    v. 
Thome,   28  Wis.  548. 


§  417]  WILLS.  443 

This,  and  the  certificates  of  authentication,  are  the  material  parts. 
The  following  may  serve  as  a  precedent: 


Exemplification  of  the 
Last  Will  and  Testament 

of 

Charles   B.   Thompson, 

of   Jackson    Coimty,   Mo. 

Doc.  274,938 


Recorded    in    the    Recorder's 

office  of  Cook  County,  III.,  Aug- 
ust 7,  1915. 

Book  580,  page  200. 
Will  dated,  Dec.  14,  1908. 


Testator  devises  and  bequeaths  unto  his  wife  Elizabeth  E.  Thomp- 
son, [here  set  out  the  specific  land  covered  by  the  examination,  or, 
if  the  devise  is  general  follow  the  language  of  the  will.  Thus:] 
all  his  property  and  estate,  real  and  personal,  wherever  the  same 
may  he  situated  and  of  whatever  consisting,  to  wMch  he  may  he 
in  any  manner  entitled  at  the  time  of  his  death,  and  appoints  his 
said  wife  to  he  the  sole  executrix  without  hond. 

Three  witnesses. 

Proved  and  admitted  to  record  in  the  Prohate  Court  of  Jackson 
County,  Missouri,  June  10,  1913. 

Testimony  of  two  subscribing  witnesses  appended. 

Appended  also  is;  Certificate  of  James  H.  Smith,  Clerk  of  the 
Prohate  Court  of  Jackson  County,  Mo.,  under  seal  of  said  Court, 
dated  July  20,  1915,  that  the  ''above  and  foregoing''  is  a  fidl, 
true  and  complete  transcript  of  the  last  will  and  testament  of) 
Charles  B.  Thompson,  deceased,  together  with  the  proof  thereof 
as  the  same  remains  of  record  and  on  file  in  his  office. 

Further  appended  is:  Certificate  of  William  H.  Jones,  Judge 
of  the  Prohate  Court  of  Jackson  County,  Mo.,  dated  July  25, 
1915,  that  the  above  named  James  H.  Smith  is  the  Clerk  of  said 
Court  and  that  the  seal  annexed  to  his  certificate  is  the  seal  of 
said  Probate  Court,  and  that  said  certificate  is  in  due  form  of  law. 

§  417.  Abstract  of  Probate  Proceedings.  It  is  estimated  that 
about  once  in  eveiy  twenty-five  years  all  the  real  property  in 
the  country  passes  under  the  supervision  of  the  probate  courts, 
and  whether  the  estimate  be  based  on  correct  or  incorrect  data,  it  is 
certain  that  there  are  but  few  titles  of  twenty-five  years'  duration 
that  do  not  show  testamentary  conveyances  or  descents.  The  rec- 
ords and  proceedings  of  these  courts,  therefore,  have  a  direct  and 
important  bearing  on  every  title  of  long  standing,  and  are  among 
the  muniments  that  go  to  give  stability  and  security  to  the  pos- 
session of  the  party  asserting  such  title. 


444  ABSTRACTS   OP   TITLE.  [§417 

The  ordinary  proceedings  of  county  and  probate  courts  whicli 
have  a  direct  influence  upon  land  titles  are :  the  probate  of  wills 
and  issuance  of  letters  testamentary  and  of  administration ;  the 
inventor}'  and  collection  of  the  effects  of  deceased  persons;  the 
proof  of  payment  of  debts  and  legacies ;  the  assignment  of  dower 
and  homesteads ;  the  sale  of  lands  by  executors  and  administrators ; 
the  allowance,  distribution  and  partition  of  the  estates  of  deceased 
persons;  and  incidentally  of  proceedinsg  relative  to  guardians  and 
wards,  adoption,  etc.  Sometimes  the  peculiar  exigencies  of  the 
case  may  include  all  of  the  different  matters  just  enumerated; 
again  the  desired  end  may  be  attained  with  a  showing  of  but  one 
or  two.  So,  too,  it  will  sometimes  be  necessary  that  a  very  full 
exemplification  must  be  given  of  the  matters  presented  and  the 
action  had  thereon,  while  under  other  circumstances  only  a  brief 
mention  will  be  required.  The  matter  will  therefore  rest,  in  a  large 
measure,  in  the  discretion  of  the  examiner. 

Upon  the  probate  of  wills,  the  abstract  of  the  proceedings 
should  show :  the  proof  of  the  will ;  ^  the  acceptance  or  renuncia- 
tion of  the  trust  by  the  executor;  the  issuance  of  letters  testa- 
mentary,^ and  qualification  of  the  executor;  the  inventory  of  real 
estate;  the  proof,  allowance  and  payment  of  claims.  This  much 
is  indispensable,  but  other  steps  and  proceedings  may  often  be 
profitably  shown.  The  degree  of  detail  to  be  observed  must  be 
governed  in  most  respects  by  the  judgment  of  the  examiner  in 
the  absence  of  instructions  from  the  client.  A  summary  is  pre- 
sented by  way  of  illustration,  and  which,  perhaps,  is  full  enough 
for  ordinary  cases : 


hi  ihe  matter  of  the  estate 

of 
William  H.  Black, 

deceased. 


County    Court,   Kane    county. 
In  Probate. 

Case  No.  3,  in  Box  153.'^ 
Will  of  William  H.  Black. 
Dated  May  2,  1877. 
Filed  October  13,  1880. 


6  A  transcript  of  the  record  of  pro-  to  establish  title,  if  not  overcome  by 

bate  of  a  will   devising  lands,  made  counter  proof:    Allaire  v.  Allaire,  37 

before   a   proper   tribunal,   is   compe-  N.  J.  L.  312. 

tent  evidence  of  title  in  an  action  of  6  The   issuance  of  letters  presunip- 

ejectment,  if  the  record  contains  the  tively  establishes  the  fact  of  death : 

proofs  taken  before  the  court,  as  re-  Carroll    v.    Carroll,    6    Thonip.    &    C. 

quired   by  the   statute;    and,   if   the  (N.  Y.)  294;  Holmes  v.  Johnson,  42 

proofs  contained  in  the  record  show  Pa.  St.  159;  Pick  v.  Strong,  26  Minn, 

that  the   will   was  executed   with  all  303. 

the    formalities    required   by    statute,  ^  This  has  reference  to  the  deposi- 

the  probate  will  be  prima   facie  evi-  tory  of  all  the  papers  in  the  case, 
flenco.  and  will  of  itself  bo  sufficient 


§417]  •   WILLS.  445 

Proven  and  admitted  to  record,  January  28,  1881. 

Recorded  in  Vol.  2,  page  383. 

Said  testator  disposes  of  his  estate  as  follows: 

Directs  the  payment  of  all  his  just  debts  and  funeral  expenses. 

Devises  to  his  executor  (or  his  successor)  his  *'home  place," 
consisting  of  house  and  ham,  and  ahout  two  acres  of  la7id  on  the 
west  side  of  Park  Place,  and  runwing  through  to  Tenth  street,^ 
and  lying  between  Forrest  avenue  and  G-rinnel  street,  in  the  city 
of  Elgin,  Kane  county,  Ills.,  in  trust,  to  lease  same  or  to  sell  same 
and  apply  income  and  proceeds  for  the  use  and  comfort  of  his 
wife,  Anna  Black,  dtmng  her  natural  life,  and  for  the  support 
and  education  of  his  son,  Walter  Black,  and  at  the  death  of  said 
wife,  if  undisposed  of,  to  be  transferred  and  conveyed  to  his  son, 
Walter  Black,  if  then  living,  or  to  his  issue,  if  any,  if  he  be  not 
living,  or  to  testator's  heirs  at  laiv,  if  his  said  son  shall  be  then 
dead,  leaving  no  issue. 

Gives  and  devises  to  his  nephew,  John  Black,  son  of  his  brother, 
James  Bla^k,  etc. 

If  it  is  desired  to  set  out  the  entire  will,  which  will  seldom  be 
necessary,  the  devises  and  bequests  will  follow  here  in  narrative 
form.  As  the  inquiry  will  rarely  cover  more  than  one  specific  tract, 
the  particular  devise  which  has  reference  to  such  tract  is  shown 
in  detail,  and  general  reference  made  to  all  others ;  as. 

Devises  to  various  other  persons,  certain  real  estate  not  now  in 
question  (or,  not  covered  by  this  examination). 

Unless  there  are  legacies  which  are  charged  upon  the  land,  the 
personal  bequests  may  be  disregarded  except  the  residuary  clause 
which  next  follows : 

Gives,  devises  and  bequeaths  all  the  rest  and  residue  of  his  prop- 
erty, real  and  personal,  including  lapsed  legacies  and  devises,  unto 
his  son,  Walter  Black,  subject  to  the  payment  of  the  following  an- 
nuities, to  wit: 

To  his  mother,  etc.  [set  out  the  annuities] . 

Appoints  his  brother,  James  Black,  sole  executor  and  trustee, 
and  in  case  of  his  death,  declination,  resignation  or  inability  t& 
act,  directs  that  Clarence  D.  Perry  act  in  his  place,  ivaiving  se- 
curity, and  giving  his  executor  full  power  to  sell  any  part  or  parts 
of  the  real  estate  herein  devised  to  his  son  Walter,  at  public  of 
private  sale,  and  to  give  good  and  sufficient  deeds  thereof  to  the 
purchaser  or  purchasers  so  that  they  shall  not  be  answerable  far 


446  ABSTRACTS   OF   TITLE.  [§  417 

the  application  of  the  purchase  money,  and  in  case  of  such  sales 
the  proceeds,  after  paying  debts,  legacies  and  annuities,  to  go  to 
his  son  ^Yaltcr  as  part  of  the  residue  of  his  said  estate. 

Three  witnesses. 

Renunciation  of  James  Black  of  his  appointment  as  executor  and 
trustee,  filed  January  28,  1881. 

Petition  of  Clarence  D.  Perry  for  proof  of  will  and  letters  testa- 
mentary, filed  January  29,  1881. 

Said  petition  represents  that  William  II.  Black  died  testate 
May  27,  1880,  leaving  him  surviving  Anna  Black,  his  widow,  and 
Walter  Black,  his  son,  his  only  heir  at  law. 

Sworn  to  Nov.  26, 1880. 

Letters  testamentary  to  Clarence  D.  Perry,  issued,  dated  Jan^y 
31,  1881.    Recorded  in  Vol.  2,  pg.  273. 

Bond  in  sum  of  $80,000.00,  security  waived,  filed  and  approved 
Jan'y  31,  1881.    Recorded  in  Yol.  2,  pg.  273. 

Warrant  to  appraisers  issued,  dated  January  31,  1881. 

Appraisers'  report  filed  and  approved  June  8,  1881,  shoivs  no 
property  belonging  to  said  estate  subject  to  appraisement. 

Appraisement  of  widow's  award  filed  and  approved  June  8, 
1881.    Total  value,  $2,800.00. 

Inventory  filed  and  approved  June  8,  1881.  Record  in  Vol. 
10,  pg.  627. 

Mentions  real  estate  as  follows: 

Lots  19  and  20,  Block  1,  etc. 

Proof  of  publication  and  posting  of  notices  for  adjudication  filed 
July  12,  1881,  approved  in  open  court  July  18,  1881. 

Adjudication  ordered  July  18,  1881. 

Sundry  claims  filed  and  allowed  amounting  to  the  sum  of 
$5,042.30. 

Continue  in  this  manner,  showing  all  important  steps,  until  final 
settlement  and  discharge  of  executor.  The  synopsis  should  close 
with  an  abstract  of  the  final  order  showing  payment  of  the  widow's 
award  and  of  all  proved  debts. 


CHAPTER  XXIV. 


LIENS,   CHARGES,   AND  INCUMBRANCES. 


§418. 

Liens  generally. 

§429. 

Municipal  liens. 

§419. 

How  created. 

§430. 

Official  bonds. 

§420. 

Operation  and  effect. 

§431. 

Leases. 

§421. 

Method   of   arrangement. 

§432. 

Vendor's  liens. 

§422. 

Mortgages. 

§433. 

Mechanic 's   liens. 

§423. 

Dower. 

§434. 

Continued — Priority. 

§424. 

Judgments  and   executions. 

§435. 

Estate  to  which   the 

lien  at- 

§425. 

Judicial  and   execution   sales. 

taches. 

§426. 

Lis  pendens  and   attachment. 

§436. 

Limitation  of  lien. 

§427. 

Decedent's  debts. 

§437. 

Assignability. 

§428. 

Taxes. 

§438. 

Foreclosure. 

§  418.  Liens  Generally.  A  lien  is  defined  as  a  hold  or  charge 
which  one  person  has  upon  the  property  of  another  as  a  security 
for  some  debt  or  charge,^  and  in  its  broad  sense  would  cover  all 
burdens,  charges  or  incumbrances  placed  on  land,  including  mort- 
gages, judgments,  taxes,  etc.,  as  well  as  common  law  and  statutoiy 
liens,  and  liens  arising  by  implication  of  law.  In  its  more  re- 
stricted signification  it  is  used  to  denote  certain  preferred  or 
privileged  claims  given  by  statute  or  arising  by  implication  of  law, 
and  indicates  a  mere  right  to  hold  the  property  until  the  claim  has 
been  satisfied.  Even  in  this  latter  sense,  as  it  is  now  employed 
in  conveyancing  and  the  compilation  of  abstracts,  its  popular 
meaning  confines  it  to  certain  classes  enumerated  by  statute;  as 
the  lien  of  mechanics  and  material  men,  attachment,  lis  pendens, 
etc.,  and  liens  arising  by  operation  of  law,  as  decedent 's  debts,  pur- 
chase money  liens,  etc. 

Liens  are  also  classified  as  legal  and  equitable.  The  latter,  being 
generally  unknown  to  the  world,  and  frequently  operating  injuri- 
ously on  the  rights  of  creditors  and  purchasers,  are  never  enforced 
except  in  cases  where  the  right  is  clearly  and  distinctly  made  out.'* 
The  so-called  ' '  vendor 's  lien  "  is  a  conspicuous  example  of  this  class. 

§  419.  How  Created.  Liens  upon  lands  are  created  by  the  stat- 
ute, to  secure  the  payment  of  taxes,  and  other  public  debts;  to 


1  2  Bou.  Law  Diet.  47. 

2  Conover  v.  Warren,  1  Gilm.  (111.) 


498;  see  Walker  v.  Matthews,  58  III. 
196. 


447 


448  ABSTRACTS    OP   TITLE.  [§  419 

protect  estates  raised  out  of  or  incident  to  tlie  marriage  relation ; 
to  effectuate  tlie  judgments  of  courts  by  alloAving  the  land  of  tiie 
defendant  to  be  taken  in  execution,  as  well  as  to  anticipate  such 
judgments  by  way  of  attachment  and  lis  pendens;  to  secure  the  pay- 
ment of  debts  of  deceased  persons,  and  to  secure  the  wages  of 
laborers  and  mechanics.  They  are  also  created  by  the  direct  act 
of  the  parties,  as  by  leases,  mortgages,  etc,  and  arise  in  a  number 
of  cases  by  operation  or  implication  of  law,  as  to  secure  unpaid 
purchase  money,  etc.,  these  latter  being  known  as  equitable  liens. 
Intending  purchasers  are  chargeable  with  notice  of  all  statutory 
liens,  the  provisions  of  the  statute  having  been  substantially  com- 
plied with,  but  will  take  the  land,  where  the  sale  is  made  in  good 
faith  and  for  value,  freed  from  the  burden  of  equitable  liens  of 
which  they  had  no  notice. 

§  420.  Operation  and  Effect.  Unlike  a  conveyance,  a  lien,  how^- 
ever  created,  confers  no  estate  in,  or  title  to,  the  property  to  which 
it  attaches,  and  maj^  be  discharged  at  any  time  before  foreclosure 
by  the  payment  of  the  sum,  or  performance  of  the  obligation,  for 
which  the  property  is  held. 

§  421.  Method  of  Arrangement.  Liens,  charges  and  incum- 
brances of  every  kind,  with  but  one  exception,  are  shown,  not  in  the 
regular  course  of  title,  but  in  appendices  to  same,  and,  for  better 
convenience,  under  classified  heads.  The  exception  is  in  ease  of 
mortgages,  which,  following  the  custom  which  prevailed  when  such 
instruments  were  conveyances  of  the  legal  estate,  are  shown  in  regu- 
lar chronological  order  in  the  chain.  This  arrangement  possesses 
many  advantages  over  any  other,  the  chief  one  being  to  preserve  the 
symmetry  of  the  title,  which  enables  counsel  to  obtain  a  clearer  view 
thereof  than  could  possibly  be  obtained  if  the  liens  and  charges 
were  inserted  in  the  chain  in  their  order  of  time.  An  analysis  of 
the  abstract  should  always  be  prepared  in  every  long  examination, 
and  the  effect  of  liens,  considered  with  reference  to  the  fee, 
can  more  easily  be  determined  by  this  arrangement  on  the  compila- 
tion of  such  analysis  than  if  they  were  allowed  to  interfere  with 
the  primary  questions  raised  by  the  actual  conveyances.  These 
points  mil  be  more  fully  demonstrated  in  treating  of  "Opinions 
of  Title." 

§  422.  Mortgages,  The  ancient  doctrine,  by  which  mortgages 
were  regarded  as  convej'ances  of  the  legal  estate,  no  longer  obtains 
in  the  United  States,  or  at  least  but  in  a  very  modified  form,  while 


§  425]  LIENS,   CHARGES  AND  INCUMBRANCES.  449 

in  a  majority  of  the  States  they  are  regarded  simply  as  liens  on 
land  to  secure  the  payment  of  indebtedness,^  Considered  simply 
as  liens,  they  might,  before  default  or  foreclosure,  with  propriety, 
be  shown  with  other  liens,  and  it  is  the  custom  of  some  examiners 
to  follow  this  method  of  arrangement;  after  default  and  foreclos- 
ure they  become  essentially  muniments  of  title,  and  must  appear 
in  the  chain  in  regular  chronological  sequence.  Mortgages  fol- 
lowed by  satisfaction  are  but  dead  matter,  and  when  forming  part 
of  the  chain  are  positive  hindrances  in  passing  the  title;  such 
mortgages  might  be  shown  in  appendices  under  the  head  of  "sat- 
isfied liens,"  the  main  object  being  simply  to  show  a  proper  and 
legal  release. 

§  423.  Dower.  The  inchoate  right  of  dower,  during  the  lifetime 
of  the  husband,  is  at  least  a  cloud  upon  the  title  in  the  hands 
of  the  husband's  alienee,  which,  in  the  event  of  his  death  before 
that  of  the  wife,  develops  into  a  positive  charge  upon  the  land.* 
In  the  first  event  it  is  hardly  a  lien,  while  in  the  latter  it  is  more 
than  a  lien,  but  in  both  instances  it  will  appear  only  inferentially, 
and  can  not  be  shown  afiirmatively  in  the  abstract. 

§  424.  Judgments  and  Executions.  Judgments,  from  the  time 
of  their  rendition,  and  executions,  from  the  period  of  issuance  or 
levy,  create  statutory  liens,  which  necessitate  a  full  exposition  in 
the  abstract.  The  subject  is  reserved  for  ample  treatment  in  a 
subsequent  chapter. 

§  425.  Judicial  and  Execution  Sales.  The  purchaser  of  lands 
sold  on  execution  acquires  by  his  purchase  no  more  than  a  lien 
upon  the  lands  for  the  amount  of  his  bid,  and  interest  during  the 
period,  if  any,  allowed  for  redemption.  He  does  not  obtain  the 
legal  title ;  and  if  the  lands  are  subject  to  a  mortgage,  he  does  not 
become  the  owner  of  the  equity  of  redemption  until  after  the  ex- 
piration of  the  period  allowed  for  redemption  from  the  execution 
sale.^ 

3  See  Chap.  XXI,  Odell  v.  Montross,  4  An  inchoate  right  of  dower  out- 

68  N.  Y.  499;  Gorham  v.  Arnold,  22  standing  is  a  defect  in  the  title,  and 

Mich.  247;  White  v.  Rittemneyer,  30  an     incumbrance     upon     the     estate: 

Iowa,  268;  Vason  v.  Ball,  56  Ga.  268;  Wright  v.  Young,  6  Wis.  127. 

Fletcher  V.  Holmes,  32  Ind.  497 ;  Car-  6  Vaughan    v.    Ely,    4    Barb.    159; 

penter  v.  Bowen,  42  Miss.  28;  Woods  Farmers  Bank  of   Saratoga  v.   Mer- 

V.  Hildebrand,  46  Mo.  284;  Actor  v.  chant,  13  How.   (N.  Y.)   10. 
Hoyt,  5  Wend.  602;  Parsons  v.  Nog- 
gle,  23  Minn.  328. 

Warvelle  Abstracts — 29 


450  ABSTRACTS   OP    TITLE.  [§  426 

§  426.  Lis  Pendens  and  Attachment.  A  pending  suit  involving 
title  conveys  notice  to  intending  purcliasers,  and  charges  the  land, 
in  whosesoever  hands  it  may  be,  with  the  consequences  of  what- 
ever decree  may  be  made,  while  au  attachment  reserves  the  land 
to  satisfy  any  judgment  that  may  be  rendered  in  the  suit  and  cre- 
ates a  lien  in  favor  of  such  judgment  in  advance  of  its  rendition. 
The  attachment  is  a  lien  from  the  time  of  the  levy,^  but,  in  the 
case  of  land,  this  means  the  filing  of  the  certificate  in  the  office  of 
tlie  recorder  of  deeds.''^ 

§427.  Decedent's  Debts.     The  debts  of  a  deceased  person  are 

a  lien  upon  the  lands  of  such  decedoit  in  the  hands  of  his  heirs 
or  devisees,  and  the  lien  continues  until  paid  or  barred  by  the 
statute.  If  the  heir  aliens  the  lands,  the  alienee  holds  them  subject 
to  this  lien,  and  his  title  may  be  defeated  by  a  subsequent  sale  by 
the  administrator.^ 

§  428.  Taxes.  The  lien  of  the  State  for  taxes  attaches  to  all 
lands  sul)ject  to  taxation  on  some  day  stated,  usually  the  first  day 
of  May  of  each  year,  and  every  person  owning  land,  on  that  day 
is  liable  for  the  taxes  due  thereon  for  the  year.^  They  take  pri- 
ority of  all  other  liens  under  the  principles  applicable  to  the 
prerogatives  of  sovereignty.^®  The  subject  will  be  discussed  fur- 
ther on. 

§  429.  Municipal  Liens.  Liens  may  be  created  upon  the  lands 
of  individuals  and  corporations  by  ordinances  of  cities  for  municipal 
expenses;  lighting,  cleaning  or  repairing  streets;  public  improve- 
ments, etc.  All  questions  relative  to  the  effect  of  municipal  ordi- 
nances considered  as  liens,  are  local  and  statutory, 

§  430.  Official  Bonds.  A  peculiar  class  of  liens  arises  in  some 
States  from  official  bonds,  which  are  declared  to  be  liens  on  all 
the  real  estate  held  jointly  or  severally  by  the  officers  giving  same, 
and  their  sureties,  from  the  time  of  filing  the  bonds  until  such 
officers  shall  have  been  honorably  discharged  from  their  trusts. 

6  Martin  v.  Dryden,  1  Gilm.   (111.)  date    of    the    commencement    of    the 

187.  lien    has    reference    to    the    day    on 

7 Hall  V.  Gould,  79  111.  16.  which    the    citizen    is    compelled    to 

8  Vansyckle   v.    Richardson,    13   111.  list   his  land   for  taxation. 
171;  Hill  V.  Treat,  67  Me.  501;  and  lODunlap   v.   Gallatin   Co.,    15    111. 

see  Rosenthal  v.  Renick,  44  111.  202.  7;  Dennis  v.  Maynard,  15  111.  477. 

9Almy   v.   Hunt,   48   111.   45.      The 


§  431]  LIENS,   CHARGES  AND  INCUMBRANCES.  451 

These  bonds  are  most  frequently  required  from  collectors  of  taxes, 
and  it  would  seem,  that  where  any  of  the  parties  vendors  named 
in  the  abstract,  during  the  period  in  which  an  action  may  be 
brought  on  an  official  bond,  have  held  this  position,  or  have  been  a 
surety  for  any  such  officer,  an  examination  should  be  made  for 
liens  of  this  nature.  As  the  bonds  are  required  to  be  filed  or 
recorded  in  some  of  the  designated  public  offices  of  the  county, 
the  files  or  records  should  be  regularly  inspected  as  often  as  oc- 
casion may  require,  and  references  obtained  to  the  information 
thereby  disclosed.  The  indices  to  the  information  thus  obtained 
may  consist  of  special  volumes,  but  a  better  way  is  to  post  same  in 
the  "irregular"  index  where  the  names  of  the  bounden  individ- 
uals will  always  be  found  when  compiling  the  chain.  Usually 
where  a  bond  has  the  effect  of  a  lien,  the  principal  and  his  sureties 
are  entitled  to  have  a  discharge  entered  whenever  the  operation  of 
the  bond  has  ceased,  and  where  the  obligation  is  discharged,  by 
proper  entries,  it  may  be  disregarded  in  making  up  the  abstract. 
Where  the  bond  is  apparently  a  subsisting  lien,  it  must  be  shown 
in  the  same  manner  as  other  liens.  In  abstracting  these  bonds, 
the  general  form  already  given  may  be  followed,  the  essential  par- 
ticulars being  the  parties,  penalty  and  condition  of  the  obligation, 
which  should  be  fully  stated.^^  It  has  been  held  that  the  statutory 
lien  created  by  giving  an  official  bond  does  not  in  any  way  affect 
the  homestead  of  the  person  giving  same,^^  but  with  this  exception, 
it  attaches  to  all  the  real  estate  then  owned  by  the  obligor  or  his 
sureties,  and  also,  as  in  the  case  of  a  judgment,  to  all  after  acquired 
lands.^* 

§  431.  Leases.  A  subsisting  lease  is  rather  in  the  nature  of  a 
charge  or  incumbrance  on  the  fee  than  a  lien.  It  confers  a  right 
of  possession,  according  to  its  import,  to  the  exclusion  of  the  owner 
of  the  fee  or  reversion.  Considered  in  this  light  and  it  can  be 
viewed  in  no  other,  it  does  not  properly  come  within  the  chain 
of  title,  but  is  appended  to  it,  and  should  be  shown  in  the  abstract 
after  the  course  of  title  has  been  traced.  When  exhibited  in  its 
proper  order  of  time  as  a  part  of  the  chain  it  may,  perhaps,  be 
more  readily  considered  with  respect  to  its  effect  on  subsequent 

H  As  to  the  nature,  effect  and  con-  12  Trustees  of  School  v.  Hovey,  94 

struction  of  official  bonds,  considered  111.  394. 

in  their  relation  to  real  estate,  consult  13  Crawford    v.    Richeson,    101    111. 

Richeson    v.    Crawford,    94    111.    165;  351. 
and    Crawford    v.    Richeson,    101    111. 
351. 


452  ABSTRACTS   OF   TITLE.  [§431 

conveyances,  but  it  is  the  experience  of  the  writer  that  correct 
estimates  of  title  are  more  easily  and  correctly  arrived  at  by  keep- 
ing the  fee  disassociated  from  all  minor  estates.  The  better  plan, 
therefore,  seems  to  be  to  show  leases  among  the  appendices.  Should 
the  term  extend  over  a  long  period  of  time,  with  numerous  assign- 
ments or  transfers  of  any  interest  less  than  the  term,  the  lease- 
hold should  be  traced  in  a  separate  chain,  with  proper  subheadings 
indicating  the  purport  of  the  search, 

§432.  Vendor's  Liens.  Where  there  is  an  express  reservation 
made  in  a  deed  of  the  lien  of  the  vendor,  this  is  equivalent  to  a 
mortgage  taken  for  the  purchase  money  contemporaneously  with 
the  deed.  In  fact  the  purchaser  is  practically  in  the  same  condi- 
tion as  if  he  had  received  a  deed  and  given  a  mortgage  for  the 
purchase  money,  and  he  has  the  right  to  redeem.^* 

But  in  addition  to  this  form  there  is  a  recognized  lien  of  the 
vendor  for  unpaid  purchase  money  which  is  not  based  upon  con- 
tract; nor  is  it  an  equitable  mortgage  or  resulting  trust,  but  an 
equity  which  is  raised  and  administered  by  the  courts,  who  enforce 
or  deny  it  as  the  merits  of  each  particular  case  may  seem  to  de- 
mand. It  is  never  allowed  to  override  or  take  priority  of  equities 
or  rights  of  third  persons,  which  have  attached  in  ignorance  of 
such  vendor's  equity,  and  is  not  in  this  respect  like  a  mortgage,  or 
other  lien  created  by  express  contract,  or  even  by  statute.^*  Under 
the  application  of  this  doctrine  a  purchaser  is  not,  in  equity,  the 
owner  adversely  to  the  lien  of  his  vendor,  but  is  treated  as  a  trustee 
for  him  until  the  purchase  money  is  paid.  The  vendor's  lien 
exists  against  such  purchaser,  and  against  volunteers  and  pur- 
chasers under  him  with  notice  of  his  having  an  equitable  title 
only,^^  or  with  notice  of  the  vendor's  equitable  lien.^''^  A  vendor's 
lien,  of  the  character  now  under  consideration,  is  personal  in  its 
nature  ^^  and  is  raised  by  construction  of  equity  in  favor  of  the 
vendor  only.^^  It  is  not  a  matter  of  sale  and  can  not  be  assigned, 
even  by  express  language,  with  the  note  taken  for  the  purchase 

14Kinp  V.   Y.   M.   Assn.,    1    Woods,  tuirper  v.  P'orenian,  81   111.  364;  Mad- 

;iR6;  Smith  v.  Rowland,  13  Kan.  245;  don  v.  Barnes,  45  Wis.  135. 

rarpentcr  V.  Mitchell,  54  111.  126.  17  Graves    v.    Coutant,    31     N.    J. 

15  Allen   v.   Loring,   34   Iowa,  499;  Eq.    763;    Wilson    v.    Lyon,    51     111. 
Swan  V.  Benson,  31  Ark.  728;  Moody  166. 

V.    Fislar,    55    Ind.    592;    Moshier    v.  18  .lones    v.    Doss,    27    Ark.    518; 

Meek,  80  111.  79.  Bowlin  v.  Pearson,  4  Baxter  (Tenn.), 

16  Walton    V.    Hargroves,    42    Miss.       341. 

18;    Burch    v.    Carter,    44    Ala.    115;  19  Lindsey  v.  Bates,  42  Miss.  397; 

Swan  V.  Benson,  31  Ark.  728;  Harsh-       Small   v.   Stagg,  95   111.   39. 


§  434]  LIENS,   CHARGED  AND  INCUMBRANCES.  453 

money,^''  and  an  assignment  of  the  notes  will,  as  a  rule,  extinguish 
the  lien, 21  as  will  also  the  taking  of  a  distinct  and  independent 
security.^'' 

Inasmuch  as  a  vendor's  lien,  as  just  described,  is  secret,  un- 
known to  the  world,  and  often  productive  of  harm,  it  will  not  be 
extended  beyond  the  requirements  of  the  settled  principles  of 
equity,  and  such  liens  are  not  encouraged  by  the  courts.^^  It  is 
not  apparent  on  perusal  of  the  abstract,  and  will  not  affect  a  pur- 
chaser for  value  and  without  notice. 

§433.  Mechanic's  Liens.  A  mechanic's  lien  is  the  creature  of 
statute,  and  depends  for  its  validity  solely  upon  the  act  creating 
it.  The  act  itself  is  an  innovation  upon  the  common  law  affecting 
property  and  rights  of  property,  as  it  authorizes  land  to  be  incum- 
bered without  or  against  the  consent  of  the  owner,  and  without  a 
resort  to  legal  process  or  judicial  action.  Such  an  act  can  not  be 
extended  in  its  operation  and  effect  beyond  the  fair  and  reason- 
able import  of  the  words  used,  and  whoever  asserts  the  lien  must 
bring  himself  within  its  terms,  and  the  lien  must  be  shown,  not 
only  to  have  been  regular  and  valid  in  its  inception,  but  to  be  a  con- 
tinuing and  existing  lien  under  the  statute.^*  The  design  of  the 
law  is  to  protect  the  mechanic,  laborer,  and  material  man  to  the 
extent  of  services  performed  or  materials  furnished.  The  lien  is 
absolute  to  the  extent  of  the  owner's  interest  in  the  land  affected, 
and  can  not  be  divested  by  a  sale  or  transfer  of  same  after  the  com- 
mencement of  performance  of  the  contract.^^  For  this  latter 
reason  it  is  always  well  to  call  the  attention  of  prospective  pttr- 
chasers  to  the  fact  of  possible  liens  not  shown  of  record.  A  sug- 
gestion of  this  kind  will  be  found  in  the  remarks  on  opinions  of 
title. 

§  434.  Continued — Priority.  Being  dependent  on  the  statute 
for  their  force  and  extent,  no  general  rule  can  be  asserted  in  regard 

zOHeet    V.    Spears,    27    Ark.    229;  Stevens    v.    Kaimvater,    4    Mo.    App. 

Markoe   v.   Andras,   67   111.   34.     But  292;  Cowl  v.  Varnuni,  37  111.  181. 

see   contra,   Bill  v.   Mason,   42   Iowa,  23  Cowl    v.    Varnuni,    37    111.    181, 

330.  Doolittle  v.  .Jenkins,  55  HI.  400. 

21  Pillow  V.  Helm,  7  Baxter  24  Mushlitt  v.  Silverman,  50  N.  Y. 
(Tenn.),  545;  Hightower  v.  Kigsby,  360;  Dinkins  v.  Bowers,  49  Miss.  219; 
56  Ala.  126;  Bonnell  v.  Holt,  89  111.  Eothgerber  v.  Dupy.  64  111.  452. 

71.  26  Mehan  v.  Williams,  2  Daly   (N. 

22  Anderson  v.  Donnell,  66  Ind.  Y.),  367;  Dunklee  v.  Crane,  103 
150;  Stuart  v.  Harrison,  52  Iowa,  Mass.  470;  Thielman  v.  Carr,  75  111. 
511;    Neal    v.    Speigle,    33    Ark.    63;  385. 


454  ABSTRACTS   OP    TITLE.  [§434 

to  the  priority  of  mechanic's  liens.  Tliey  usually  take  precedence 
of  mortgapres  driven  after  the  commencement  of  the  work,  but  as  be- 
tween meclianics  tliere  can  be  no  priority .^^  Where,  however,  a 
mortgaj?e  or  other  lien  takes  effect  after  the  commencement  of  one 
or  more  mechanic's  liens,  but  before  the  commencement  of  others, 
the  latter  must  be  postpoued  to  the  mortgage  lien.^'  As  between 
a  lien  upon  an  equitable  interest  and  one  upon  a  full  legal  title, 
the  latter,  though  subsequent  in  time,  may  be  preferred  to  the 
former,  if  the  holder  thereof  be  an  innocent  holder  without  notice.^' 
IMechanics  and  laborer  asserting  a  lien  upon  real  property  for 
their  work,  and  claiming  priority  over  mortgagees  and  others  who 
have  acquired  interests  in  the  property,  must  furnish  strict  proof 
of  all  that  is  essential  to  the  lien,^^  but  of  what  these  essentials 
consist,  local  law  must  decide.  In  abstracting  the  petition,  notice, 
or  other  preliminary  measure,  the  examiner  will  consult  the  statute 
and  observe  that  all  its  material  requirements  are  complied  with. 

§  435.  Estate  to  Which  the  Lien  Attaches.  To  render  the  lien 
effective,  and  afford  protection  to  the  artificer  in  every  possible 
case,  it  is  permitted  by  statute  to  attach  to  an  estate  in  fee,  for  life, 
for  years,  or  any  other  estate,  or  any  right  of  redemption  or  other 
interest  which  such  ownier  may  have  in  the  land  at  the  time  of 
making  the  contract,  and  whatever  right  or  estate  such  owner  had 
at  that  time  may  be  sold  in  satisfaction  of  the  lien.^°  But  the 
lien  affects  only  the  title  of  the  person  contracting,^^  and  where 
such  person  possesses  only  an  equity,  the  legal  title  is  not  im- 
paired.^^  It  can  not  extend  to  affect  or  impair  the  right  of  dow- 
er ;  ^3  nor  the  estate  or  title  of  an  infant ;  ^*  nor  the  title  to  the  fee 
or  reversion,  when  the  contracting  party  is  only  a  tenant  for  life 
or  years ;  ^^  nor  the  property  of  a  third  party  in  the  temporary  use 

26  In  re  Hovt,  3  Biss.  436;  Thiel-  Ct.  144;  Haves  v.  Fessenden,  106 
man  v.  Carr,  75  HI.  385;  Powder  Co.  Mass.  228;  Hallahan  v.  Herbert,  11 
V.  Loomis,  2  Disney  (Ohio),  544.  Abb.     (N.    Y.)     Pr.     (N.    S.)     326; 

27  Powder  Co.  v.  Loomis,  2  Disney  Knnpp  v.  Brown,  45  N.  Y.  207. 
(Ohio),   544;    Williams   v.   Chapman,  33  Grove  v.  Cather,  23  HI.  634. 

17   111.  423.  34  McCarthy   v.    Carter,   49   HI.   53. 

28  Jones  v.  Lapham,  15  Kans.  540.  35  Knapp  v.  Brown,  45  N.  Y.   207. 

29  Davis  V.  Alvord,  94  U.  S.  545.  McCarthy  v.  Carter,  49  HI.  53;  Fran- 

80  Kidder  v.  Aholtz,  36  HI.  478;  cis  v.  Sayles,  101  Mass.  435;  and 
Donaldson  v.  Holmes,  23  111.  85.  this  even  though  the  lessee  is  bound 

81  Hickox  v.  Greenwood,  94  111.  to  make  improvements  and  leave 
266.  them  on  the  premises  at  the  expira- 

82  McCarty  v.  Carter,  49  111.  53 ;  tion  of  the  term :  Knapp  v.  Brown, 
Hickox    V.    Greenwood,    94    111.    266;  45  N.  Y.  207. 

Craig   V.    Swinerton,    15    N.   Y.    Sup. 


§  436]  LIENS,   CHARGES  AND  iNCJUMBRANCfiS.  455 

of  another ;  ^^  nor  the  separate  property  of  a  married  woman,  where 
the  contract  is  made  without  her  knowledge ;  ^"^  nor  will  it  extend 
against  the  property  of  the  State.^^  tj^^  ^ien  extends  to  the  prop- 
erty of  a  decedent,  and  may  be  enforced  against  the  land  in  posses- 
sion of  the  heirs,  but,  it  seems,  can  not  be  made  a  personal  liability 
against  them.^^ 

§  436.  Limitation  of  Lien.  It  is  difficult  to  formulate  a  statu- 
tory rule  that  shall  be  of  general  application,  and  particularly  in 
so  technical  a  matter  as  mechanic 's  liens.  In  many  States  they  are 
subject  to  constant  legislative  tinkering  and  continual  change,  with 
the  result  that  even  the  judicial  decisions  of  such  States  are  unre-. 
liable  guides. 

No  lien  is  given  in  any  of  the  States  unless  steps  are  taken  to 
secure  and  perfect  it  within  a  specified  period,  usually  six  months 
or  one  year  from  the  time  of  the  last  charge  for  performance  of 
work  or  furnishing  of  materials,  and  in  some  States  there  is  a  spe- 
cial limitation  with  respect  to  the  commencement  of  the  work;  as, 
when  the  contract  is  expressed,  no  lien  is  created  if  the  time  stipu- 
lated for  the  completion  of  the  work  is  beyond  three  years  from  the 
commencement  thereof,  or  the  time  of  payment  beyond  one  year 
from  the  time  stipulated  for  such  completion.  Where  the  contract 
is  implied,  no  lien  is  given  unless  the  work  shall  have  been  done  or 
the  materials  furnished  within  one  year  from  the  commencement 
of  the  work  or  delivery  of  materials.  The  petition  for  the  enforce- 
ment of  this  lien  must  state  everything  necessary  to  show  a  due 
compliance  with  the  statute,*^  and  such  parts  as  specifically  relate 
to  the  demand ;  the  contract  upon  which  it  is  founded ;  the  dates  of 
performance;  the  amount  due;  and  the  specific  property  which  is 
sought  to  be  incumbered,  together  with  other  material  facts  in  rela- 
tion thereto,  must  be  shown  carefully  and  in  detail,  that  counsel 
may  see  from  inspection  whether  all  of  the  conditions  necessary  to 

36  Tracy    v.    Eogers,    69    111.    662;  Neb.  397;  Panola  Co.  Sup.  v.  Gillen, 
Thaxter  v.  Williams,  14  Pick.  49.  59  Miss.  198. 

37  riannery  v.  Eohrmayer,  46  Conn.  39  McGrew  v.  McCarty,  78  Ind.  496. 
558.     Otherwise   where   such  married  496. 

woman    had    personal    knowledge    of  40  Mushlitt  v.  Silverman,  50  N.  Y. 

the  work,  or  gave  directions  concern-  360;     Dinkins    v.    Bowers,    49    Miss, 

ing   it:     Collins   v.    Megraw,    47    Mo.  219;     Eothgerber    v.    Dupy,    64    111. 

495;   or  the  materials  were  furnished  452;   Davis  v.  Alvord,  94  U.  S.  545; 

at  her  request,  or  had  her  approval:  Valentino   v.   Eawson,   57   Iowa,   179; 

Greenleaf  v.  Bebee,  80  111.  520.  Conroy    v.    Perry,    26    Kansas,    472; 

88  Thomas  v.  Industrial  University,  Eugg  v.  Hoover,  28  Minn.  404. 
71    111.   310;    Eipley   v.    Gage   Co.,   3 


456  ABSTRACTS   OP   TITLE.  f§436 

create  the  lien  are  sliowu  to  exist  aud  all  statutory  requisites  have 
been  complied  with.  Unless  the  petition  shows  on  its  face  a  con- 
tract within  the  statute,  no  lien  will  result.*^ 

§  437.  Assignability.  The  lien  given  by  the  statutes  is,  in  gen- 
eral, a  personal  right  given  to  the  mechanic,  material  man  or  laborer 
ior  his  own  protection,  and  the  right  can  not  be  assigned  or  trans- 
ferred to  another,*^  unless  the  assignment  is  made  for  the  benefit 
of  the  assignor,  and  to  be  held  as  his  agent,  so  that  the  lien  may  be 
preserved.*^  in  some  IStates  the  lien,  while  not  assignable,  will  pass 
as  an  incident  to  the  debt.** 

§  438.  Foreclosure  of  Lien.  The  lien  given  by  statute  is  not 
susceptible  of  immediate  enforcement,  but  must  be  prosecuted  by 
action  of  an  equitable  nature,  and  where  the  lien  is  finally  satisfied 
by  sale  under  a  decree,  all  the  intermediate  steps  should  be  succinct- 
ly stated  so  as  to  show  a  complete  divesture  of  title  under  the 
statute.  In  many  of  the  States  a  right  of  redemption  does  not  fol- 
low a  sale  under  a  decree  to  satisfy  a  mechanic's  lien,  and  as  the 
proceedings,  in  this  respect,  are  of  a  summaiy  nature,  it  is  essential 
that  in  all  such  instances  mure  than  ordinary  care  be  taken  in  pre- 
paring the  synopsis. 

41  MeClurken  v.  Logan,  23  111.  79 ;  43  RoUin  v.  Cross,  45  N.  Y.  766. 
Rowley  v.  James,  31  111.  298;  Valen-  Local  statutes  may  introduce  a  differ- 
tine  V.  Rawson,  57  Iowa,  179;  and  ent  rule,  but  the  text  states  the  gen- 
see  Hammond  v.  Wells,  45  Mich.  11;  eral  doctrine. 

Treusch  v.  Shyrock,  55  Md.  33.  44  Brown  v.  Smith,  55  Iowa,  31. 

42  Caldwell  v.  Laaniner,  10  Wis. 
332;  Pearsons  v.  Tincker,  36  Me. 
384. 


CHAPTER  XXV. 

LIS  PENDENS  AND   ATTACHMENT. 

§  439.  Doctrine  of  lis  pendens.  §  444.  Attachment. 

§  440.  Eequisites  of  lis  pendens.  §  445.  Formal    requisites    of    attach- 

§  441.  Effect  of  dismissal.  ments. 

§  442.  Notice  lis  pendens. 
§  443.  Property  drawn  incidentally  in 
question. 

§  439.  Doctrine  of  Lis  Pendens.  It  is  a  rule  in  equity,  long 
established  and  acted  on,  that  a  purchase  of  property  actually  in 
litigation,  or,  as  the  technical  phrase  runs,  a  purchase  pendente 
lite,  although  for  a  valuable  consideration  and  without  any  actual 
notice,  affects  the  purchaser  in  the  same  manner  as  if  he  had  such 
notice,  and  he  will  accordingly  be  bound  by  the  judgment  or  decree 
rendered  in  the  suit.  "This  rule  is  said  to  rest,"  observes  Earl,  C, 
"upon  the  presumption  that  every  man  is  attentive  to  what  passes 
in  the  courts  of  justice  of  the  State  or  sovereignty  where  he  resides, 
and  to  be  founded  on  public  policy;  for  otherwise  alienations  and 
transfers  of  title  made  during  the  pendency  of  a  suit  might  defeat 
its  whole  purpose,  and  there  would  be  no  end  to  litigation."  ^  "A 
suit  in  chancery,"  says  Depere,  J.,^  "duly  prosecuted  in  good  faith, 
and  followed  by  a  decree,  is  constructive  notice  to  every  person  who 
acquires  from  a  defendant  pendente  lite,  an  interest  in  the  subject- 
matter  of  the  litigation,  of  the  legal  and  equitable  rights  of  the 
plaintiff  as  charged  in  the  bill  and  established  by  the  decree.  This 
effect  of  a  successful  litigation  in  subordinating  the  title  of  a  pur- 
chaser pending  a  litigation,  to  the  rights  of  the  plaintiff  as  estab- 
lished in  the  suit,  is  not  derived  from  legislation.  It  is  a  doctrine 
of  courts  of  equity  of  ancient  origin  and  rests  not  upon  the  prin- 
ciples of  the  court  with  regard  to  notice,  but  on  the  ground  that 
it  is  necessary  to  the  administration  of  justice  that  the  decision  of 
the  court  in  a  suit  should  be  binding  not  only  on  the  litigant  parties, 
but  also  upon  those  who  acquire  the  title  from  them  during  the 

1  Leitch   V.   Wells,    48    N.   Y.   585 ;  Laren,  4  Cow.  667 ;  Miller  v.  Sherry, 

Story's   Eq.    .Jur.    §405;    Jackson    v.  2    Wall.     (U.    S.)     237;     Jackson    v. 

Andrews,    7    Wend.    152;    Hayden    v.  Warren,  32  111.  331. 

Bucklin,  9  Paige,  572;  Green  v.  Sla-  2  Green    v.    Slayter,    4    Johns.    Ch. 

ter,  4  Johns  Ch.  38;  Hopkins  v.  Me-  38. 

457 


458  ABSTRACTS   OF    TITLE.  [§  439 

peiicloiicy  of  tlio  suit.    Sucli  a  purchaser  need  not  be  made  a  party, 
and  Avill  be  boimd  by  the  decree  which  shall  be  made."^ 

The  doctrine  of  lis  pendens  applies  only  where  a  third  person 
attempts  to  intrude  into  a  controversy  b}'-  acqnirinf;  an  interest  in 
the  sulijcct -matter  of  the  litigation,  and  tlie  reason  of  the  rule  is, 
that  if  a  ti"insfer  of  interest  pending  a  suit  were  to  be  allowed  to 
afTect  tlie  proceedings,  there  w(nild  be  no  end  to  litigation ;  for  as 
soon  as  a  new  party  was  brought  in,  he  might  transfer  to  another, 
and  render  it  necessary  to  bring  that  other  before  the  court,  so  that 
a  suit  might  be  interminable.*  It  will  be  understood,  however,  that 
the  rule,  that  a  party  purchasing  ^icndcntc  lite  is  to  be  regarded  as  a 
purcliaser  with  notice,  subject  to  all  the  equities  of  the  person  under 
whom  he  claims,  and  bound  by  the  decree  that  may  be  rendered 
against  the  person  from  whom  he  derives  title,  applies  only  to  cases 
in  Avhicli  such  purchaser  derives  title  from  one  of  the  parties 
litigant.  If  he  claims  adversely  to  ])oth  parties  by  title  paramount, 
the  proceedings  to  which  he  is  neither  party  nor  privy  can  not  bind 
him.'^ 

§  440.  Requisites  of  Lis  Pendens.  In  applying  the  doctrine  of 
/(".s  pendens  three  facts  are  always  necessary  for  its  maintenance. 
The  property  involved  must  be  of  such  a  character  as  to  be  subject 
to  the  rule;  the  court  must  have  jurisdiction,  both  of  the  parties 
and  tlie  subject-matter  of  the  suit,  or  thing  in  controversy;  and 
the  thing,  or  property  involved,  must  be  sufficiently  described.® 
That  is,  the  property  must  be  so  pointed  out  in  the  proceedings  as  to 
warn  tlie  public  that  they  intermeddle  at  tlieir  peril;  and  anyone 
reading  the  bill  must  be  able  to  learn  thereby  what  property  is 
intended  to  be  made  the  subject  of  the  litigation.'' 

§  441.  Effect  of  Dismissal.  "Where  a  suit  at  law  is  dismissed, 
or  the  plaintiff  suffers  a  non-suit,  or,  if  in  chancery,  the  bill  is  dis- 
missed for  want  of  prosecution,  or  for  any  other  cause  not  reaching 
the  merits,  although  in  all  such  cases  a  new  action  can  be  brought, 

SHaughwout   V.    Murphy,   7    C.    E,  Scarlett  v.  Gorham,  28  111.  319;  Her- 

Green    (N,   J.),   531;    2    Story's  Eq.  rington  v.  Herrington,   27   Mo.   560; 

Jur.  §  908 ;  Murry  t.  Lyburn,  2  Johns.  Parsons  v.  Hoyt,  44  Iowa,  154. 

Ch.    444;    Dickson    v.    Todd,    43    111.  6  Norris  v.   He,   152  111.   190;   Lea- 

405 ;  Ahvood  v.  Mansfield,  59  111.  496.  veil  v.  Poore,  91  Ky.  321. 

4  Murry    v.    Lyburn,    2    Johns    Ch.  7  Miller  v.  Sherry,  2  Wall   (U.  S.) 

444.  237;  Badger  v.  Daniel,  77  N.  C.  251; 

6  Allen  v.  Morris,  34  N.  J.  L.  159 ;  Brown  v.  Goodwin,  75  N,  Y.  409. 


§  442]  LIS  PENDENS   AND  ATTACHMENT,  459 

such  action  will  not,  it  seems,  affect  a  purchaser  during  the  pend- 
ency of  the  first  suit ;  and  where  a  suit  is  dismissed  and  afterward 
reinstated,  the  doctrine  of  lis  pendens  is  not  applicable  to  one  who 
purchases  after  the  dismissal  and  before  the  revival  of  the  suit.* 

§  442.  Notice  of  Lis  Pendens.  This  common  law  rule  of  requir- 
ing purchasers,  at  their  peril,  to  take  notice  of  the  pendency  of 
suits  in  courts  of  justice  for  the  recovery  of  the  property  they  are 
about  to  purchase,  although  it  is  really  impossible  that  they  should 
actually  know  that  such  suits  have  been  commenced,  has  always 
been  considered  a  hard  rule,  and  is  by  no  means  a  favorite  with  the 
courts.^  It  has  always  been  considered  a  very  harsh  rule  in  its  ap- 
plication to  bona  fide  purchasers  for  value,  and  has  only  been 
tolerated  by  learned  judges  from  a  supposed  necessity. 

In  the  absence  of  statutory  provisions  to  the  contrary,  the  bill 
or  complaint  is  itself  a  sufficient  notice  to  the  world,  so  as  to  defeat 
the  transfer  of  property  by  the  defendant,  made  subsequent  to  its 
filing ;  1°  but  in  a  large  number  of  the  States,  particularly  where 
the  N.  Y.  code  has  been  followed,  a  material  change  has  been  made 
in  this  rigorous  rule,  which  provides  that  the  pendency  of  a  suit 
shall  not  be  notice  to  a  stranger  until  a  notice  of  lis  pendens  has 
been  filed  in  the  office  of  the  recorder  of  deeds,  or  clerk's  office,  of 
the  county  where  the  land  is  situated,  and  that  as  to  one  having  no 
actual  notice,  he  may,  in  good  faith,  and  for  a  valuable  considera- 
tion, acquire  a  valid  title  until  such  notice  is  filed.^^  The  lis  pendens 
in  this  case  would  take  effect  as  constructive  notice  in  the  same 
manner  as  attachments. 

AVhere  the  suit  is  pending,  and  before  the  bill  or  complaint  has 
been  filed,  the  notice  lis  pendens  will  best  be  shown  by  way  of  appen- 
dix, the  same  as  attachments,  but,  where  the  abstract  gives  a  synop- 
sis of  the  proceedings  then  had,  its  orderly  arrangement  would  be 
to  precede  the  synopsis.  After  decree  it  appears  only  as  an  un- 
important incident  and  is  merely  alluded  to  in  making  the  chain. 
The  form  and  substance  of  the  notice,  as  well  as  the  validity  and 
effect  of  same,  are  matters  of  local  practice  and  construction,  but 
the  following  will  serve  as  an  example  in  abstracting : 

8  Herrington  v.  McCollum,  73  111.  H  See  N.  Y.  Code,  §  132.  This 
476.                                                                      section   has    been    very    generally    re- 

9  Hayden  v.  Bucklin,  9  Paige,  572.       enacted   in  all   States  having  a  code 

10  Parkinson  v.   Trousdale,  3  Scam       practice. 
(111.)    367;    Vanzant   v.   Vanzant,   23 

111.   536;    Davis  v.   Life  Ins.    Co.,   84 
III.  508. 


460 


ABSTRACTS   OF    TITLE.  [§  442 

Circuit   Court  for  Kenosha  County. 

Notice  Lis  Pendens. 
Dated  March  1,  1883. 
agst.^  f     Recorded  March  2,  1883. 

Vol.  25,  page  500. 


John  Doe 

agst. 

Richard  Roe 


Recites  that  an  action  entitled  as  above,  has  been  commenced  in 
the  above  named  court,  and  is  now  pending  therein,  on  complaint 
of  above  named  plaintiff  against  above  named  defendant,  for  [here 
set  out  the  object  of  the  action  as  stated;  as,  ''the  foreclosure  of  a 
mortgage,  dated  June  10,  1880,  executed  by  said  Richard  Roe  to 
said  John  Doe,  and  recorded  in  volume  10,  page  85,  and  conveying 
the  follounng  described  lands,  to  wit:"  here  set  out  the  description 
as  stated]. 

The  practical  purpose  of  a  notice  of  pendency  of  suit  is  to  restrain 
strangers  from  acquiring  interests  in  the  subject-matter  of  the 
litigation  during  the  progress  of  the  suit.  It  is  practically  without 
effect  as  to  persons  whose  rights  existed  prior  to  the  filing,  nor  does 
it  protect  the  plaintiff  in  the  suit  against  pre-existing  equities.^^ 

§  443.  Property  Drawn  Incidentally  in  Question.  Where  the 
rule  of  lis  pendens  in  its  original  form  is  still  retained,  the  authori- 
ties are  generally  unanimous  in  declaring  it  to  apply  only,  first, 
where  the  litigation  is  about  some  specific  thing  which  must  be 
necessarily  affected  by  the  termination  of  the  suit;  and,  secondly, 
where  tlie  specific  property  is  pointed  out  by  the  proceedings  in 
such  a  manner  as  to  warn  the  w^iole  world  that  they  meddle  with 
it  at  their  own  peril. ^^ 

Under  the  application  of  these  principles,  it  has  been  held  by  an 
almost  invariable  uniformity  in  the  decisions  on  the  subject,  that 
the  rule  does  not  apply  to  proceedings  in  suits  which  are  in  per- 
sonam.^'^  But  the  principle  involved  may  be  invoked  in  those  suits 
which,  while  in  form  in  personam  are,  in  fact,  suits  in  rem.  Thus, 
the  question  arises  frequently  in  suits  for  divorce  in  which  the  wife 
seeks  to  have  a  certain  subsistence  secured  to  her  out  of  the  estate 
of  her  husband,  and  while  the  general  prayer  is  not  sufficient  to 
subject  tlie  property  of  the  husband  to  the  application  of  the  rule, 

12  Baker  v.  Bartlett,  18  Mont.  446;  Sherry,  2  Wall.   (U.  S.)   237;   Norris 

Warnock    v.    Harlow,    96    Cal.    298;  v.   He,   152   111.   190. 

Parks  V.  Jackson,  11  Wend.   (N.  Y.)  14  1  Story  Eq.  Jr.,  §  196,  Almond  v. 

442.  Almond,  4  Rand.  662;   Brightman  v. 

18  Freeman  on  Judg't,  196;   Green  Brightman,    1    E.    I.    112. 
V.  Slayter,  4  Johns.  Ch.  38 ;  Miller  v. 


§  445]  LIS  PENDENS  AND  ATTACHMENT.  461 

it  yet  seems  that  where  specific  property  is  incidentally  drawn  in 
question,  either  by  recitals  of  the  bill  or  orders  of  the  court,  such  a 
lis  pendens  is  created  as  will  bind  a  purchaser  pendente  lite.^^ 

§  444.  Attachment.  The  office  of  an  attachment  is  simply  to 
secure  to  a  creditor  the  property  which  a  debtor  has  at  the  time  the 
writ  is  levied  so  that  it  may  be  seized  and  sold  in  satisfaction  of 
the  debt,  after  judgment  and  execution  shall  have  been  obtained.^® 
It  creates  no  estate  in  favor  of  the  person  at  whose  instance  the 
writ  issued,^'  and  does  not  change  or  alter  the  estate  of  the  defend- 
ant debtor.18  It  places  no  impediment  on  the  power  of  alienation,^^ 
nor  will  it  affect  prior  hona  fide  liens  that  may  have  been  placed 
upon  the  land.^"  It  does  create,  however,  a  lien,  which  nothing  but 
the  dissolution  of  the  attachment  can  destroy,^^  and  every  person 
into  whose  hands  the  property  may  subsequently  come,  takes  it 
charged  with  this  lien,  and  subject  to  all  the  rights  of  the  attach- 
ing creditor  to  have  the  property  seized  and  sold  on  execution  for 
the  satisfaction  of  his  debt.^^  An  attachment  can  operate  only 
upon  the  right  of  the  debtor  existing  at  the  time  the  writ  was  levied 
and  no  interest  subsequently  acquired  by  the  debtor  can  in  any 
manner  be  affected  by  the  return  thereof,  provided  he  was  without 
title  at  the  time  the  attachment  was  made.^^  Being  in  derogation 
of  the  common  law,  an  attachment  is  dependent  entirely  upon  the 
statute  for  is  validity  and  effect,  and  must  conform  to  statutory  re- 
quirements in  all  essential  particulars.^* 

§  445.  Formal  Requisites  of  Attachment.  Though  the  remedy 
by  attachment  is  purely  statutory,  and  while  there  exists  in  many 
particulars  a  wide  dissimilarity  between  the  attachment  acts  of  the 
several  States,  there  is  yet  a  marked  uniformity  in  the  general  steps 
that  must  be  pursued  to  render  it  available,  and  its  effect  in  all  the 
States  is  nearly  identical.  The  suit  is  instituted  by  the  filing  of  a 
statutory  affidavit,  whereupon  a  writ  is  issued.  This  is  followed  by 
a  levy,  which,  in  the  case  of  land,  must,  of  necessity,  be  a  paper 

ISIsler   V.   Brown,    66   N.    C.    556;  20  Husbands  v.  Jones,  9  Bush  (Ky.) 

Daniel  V.  Hodges,  87  N.  C.  95.  218. 

16  Crocker  V.  Pierce,  31  Me.  177.  21  Smith    v.    Bradstreet,    16    Pick. 

17Goddard    v.    Perkins,    9    N.    H.  264;  Hannahs  v.  Felt,  15  Iowa,  141. 

488 ;  Foulks  v.  Pegg,  6  Nev.  136.  22  Randolph  v.  Carlton,  8  Ala.  606. 

ISBigelow  V.  Wilson,  1  Pick.  485;  23  Crocker  v.  Pierce,  31  Me.  177. 
Blake   v.    Shaw,   7    Mass.    505;    Mer-  24  May  v.  Baker,  15  HI.  89;  Hay- 
rick V.  Hutt,  15  Ark.  331.  wood  v.  Collins,  60  111.  328. 

19  Warner   v.    Everett,    7    B.    Mon. 
(Ky.)    262. 


462  ABSTRACTS   OP    TITLE.  [§  445 

levy.  The  lev'y  is  initiated  by  an  endorsement  of  the  fact  upon  the 
writ,  and  perfected  by  the  return  thereof,  while  notice  is  afforded 
by  the  filing  of  a  certificate  of  levy  with  the  recorder  of  deeds. 
Until  such  certificate  has  been  filed  the  attachment  does  not  become 
effective  as  to  third  pei-sons  without  notice.^* 

In  preparing  the  abstract  the  certificate  of  levy  would  probably 
be  all  that  is  required  to  furnish  a  notice  Ics  pendens,  but  in  prac- 
tice it  is  customary  also  to  show  a  brief  synopsis  of  the  court  pro- 
ceedings, and  this  is  the  better  method,  as  counsel  not  infre(iuently 
desires  same  as  a  reference  or  index,  as  well  as  to  see  that  the 
formal  steps  have  been  properly  taken.  Neither  in  this,  nor  in 
other  cases  where  court  proceedings  are  shown,  is  it  customary  to 
give  more  than  brief  references,  or  statements  of  steps  taken,  and 
where  greater  detail  is  desired  it  is  obtained  by  a  transcript  of  the 
record  and  papers,  or  by  personal  inspection  of  the  files.  An  ab- 
stract entry  of  an  attachment  showing  the  court  proceedings  and 
sheriff's  certificate  of  levy  is  appended  and  will  illustrate  the 
method  just  described: 

Liens  and  Lis  Pendens.^^ 


William  R.  Smith 

vs. 

John  Savage. 


In  Superior  Court  of  Cook  County,  111. 

Case  No.  89,928. 
Attachment, 

Affidavit    and    bond    filed,    and    writ 
issued  May  23, 1881. 


Returned  levied  May  23, 1881,  upon  all  the  right,  title  and  inter- 
est of  above-named  defendant  in  and  to  the  folloiving  described  real 
estate,  to  wit:    [Here  set  out  the  property  as  returned.] 

No  personal  service.    Notice  by  publication.     (Cause  pending.) 

John  Savage         1      Certificate  of  levy. 

adv.  I     Recorded  May  26,  1881. 

William  R.  Smith.     J     Book  500,  page  210. 

0.  L.  Mann,  Sheriff  of  Cook  County,  III.  (by  Deputy),  certifies, 
that  by  virtue  of  a  writ  of  attachment  numbered  78,928,  to  him 
directed  from  the  Superior  Court  of  Cook  County,  III.,  in  favor  of 
William  R.  Smith,  plaintiff,  and  against  John  Savage,  defendant, 
dated  May  23, 1881,  he  did  on  ''this"  23d  day  of  May,  1881,  levy  on 

26  Groves  v.  Webber,  72  111.  606.  matters  of  the  kind  now   under  con 

26  This  is  the  sub-head  under  which       sideration  should  be  shown. 


§  445]  LIS  PENDENS  AND  ATTACHMENT.  463 

the  right,  title  and  interest  of  said  defendant  in  and  to  the  follow- 
ing described  real  estate,  to  wit:     [Here  follows  the  description.] 

Where  the  action  is  duly  prosecuted  and  is  followed  by  judgment, 
execution  and  sale,  the  attachment  may  be  indicated  only  by  refer- 
ences to  the  issue,  levy  and  return  of  the  writ,  and  filing  of  certifi- 
cate, the  validity  of  the  sale  depending  upon  the  judgment  and 
execution;  but  where,  as  in  the  above  example,  no  personal  service 
has  been  had,  and  the  notice  is  constructive  merely,  the  notice,  proof 
of  publication,  and  other  acts  necessary  to  confer  jurisdiction  must 
appear.  The  only  object  of  the  entries  as  above  is  to  show  the  fact 
of  a  lien.  Where  the  attachment  has  been  dissolved  or  the  action 
discontinued,  a  continuation  of  the  abstract  should  disclose  those 
facts  so  as  to  show  the  removal  of  the  lien. 


CHAPTER  XXVI. 

.IliIKJMliNTS    AND    DECREES. 

§446.  Defined  and  distinguished.  §460.  Decrees,  classified  and  distiii- 
§  447.  Operation  and  effect  of  judg-  giiished. 

nients.  §  461.  Operation    and    effect    of    de- 
§  448.  Lien  of  judgments.  crees. 

§  449.  Territorial  extent  of  lien.  §  462.  Decrees  rendered  on  construc- 
§  450.  Duration  of  lien.  tive  notice. 

§  451.  Priority.  §  463.  Lien  of  decrees. 

§  452.  After-acquired  property.  §  464.  Formal   requisites   of   decrees. 

§  453.  Docketing.  §  465.  Abstract  of  decrees. 

§  454.  Formal     requisites     of     judg-  §  466.  Errors  and  defects. 

ments.  §  467.  Continued  —  Middle  name. 

§  455.  Antecedent  proceedings.  §  468.  Continued  —  Initials. 

§456.  Judgments  against  a  deceased  §469.  Operation   and    effect    of    pro 

person.  bate  decrees. 

§  457.  Judgments  against  infants.  §  470.  Foreign  judgments  and  de- 
§  458.  Exemptions.  crees. 

§  459.  Satisfaction  and  discharge. 

§446.  Judgments    and    Decrees — Defined    and    Distinguished. 

Any  distiuction  between  judgments  and  decrees  is  rather  fanciful 
than  real,  since  all  adjudications  by  a  court  of  competent  jurisdic- 
tion are  essentially  judgments,  yet  in  practice  the  term  "decree" 
is  used  to  distinguish  the  determinations  and  orders  of  a  court  of 
equity,  while  the  term  judgment  is  generally  employed  to  denote 
the  adjudications  of  a  law  tribunal.  Judgments  are  usually  for 
damages,  and  provide  for  a  definite  recovery  in  money;  decrees 
contemplate  some  method  of  affirmative  relief  or  operate  in  some 
specific  way  in  answer  to  the  prayer  of  the  complaint. 

In  examinations  of  title,  judgments  in  personam  are  important 
only  as  they  serve  to  incumber  the  land  of  the  judgment  debtor  with 
a  statutory  lien,  and  when  the  lien  has  been  extinguished,  either  by 
lapse  of  time  or  satisfaction  of  the  judgment,  they  become  of  no  im- 
portance whatever  and  are  wholly  disregarded.  Decrees,  on  the 
otiier  hand,  when  operating  directly  upon  the  land,  are  of  con- 
trolling and  continuing  efficacy.  They  become  a  part  of  the  general 
course  of  title,  and  through  whatever  mutations  it  may  afterwards 
pass  they  always  remain  essential  links  of  the  chain.^ 

1  The  Codes  of  Procedure,  adopted  nize  the  distinction  made  in  the  above 
in  many  of  the  states,  do  not  recog-       paragraph.      Under    these    codes    all 

464 


§  448]  JUDGMENTS   AND   DECREES.  465 

§  447.  Operation  and  Effect  of  Judgments.  It  is  a  general  rule, 
that  a  judgment  by  a  court  having  jurisdiction  over  the  parties 
and  the  subject-matter,  rendered  directly  upon  the  point  in  ques- 
tion, is  conclusive  as  between  such  parties  and  in  relation  to  such 
point,^  and  there  is  no  essential  difference  between  the  effect  of  a 
decree  in  equity,  and  that  of  a  judgment  at  law  to  bar  a  subsequent 
suit.^  But  such  adjudication  is  conclusive  only  for  the  purposes  for 
which  it  was  made,  and  does  not  conclude  matters  collaterally  in- 
troduced or  recited.* 

It  is,  however,  in  regard  to  their  effect  on  the  lands  of  the  judg- 
ment debtor,  by  reason  of  the  lien  given  by  the  statute,  that  they 
become  at  all  important  in  examinations  of  title ;  and  in  pursuing 
such  examinations  whatever  other  operation  or  effect  they  may 
have  is  comparatively  of  no  significance.  This,  of  course,  has  refer- 
ence only  to  judgments  in  personam,  and  not  to  judgments  in  legal 
actions  which  operate  in  rem.^ 

§  448.  Lien  of  Judgments.  Judgment  liens  on  real  estate  are 
wholly  statutory.  The  lien  attaches  and  becomes  effective  only  by 
force  of  the  statute,  and  only  in  the  mode,  at  the  time,  and  upon 
the  conditions  and  limitations  imposed  by  it.  It  receives  no  vigor 
or  even  aid  from  the  common  law,  to  which  it  was  unknown.  At 
common  law,  the  judgment  creditor  could  have  satisfaction  only 
out  of  the  goods  and  chattels  and  present  profits  of  the  lands  of 
the  debtor,  but  under  the  statute  it  is  the  policy  of  the  law  to  make 
all  of  a  man 's  property,  real  as  well  as  personal,  liable  for  the  pay- 
ment of  his  debts,  both  during  his  life  and  after  his  death,  except  in 
cases  of  specified  statutory  exemptions;  and  a  conveyance  of  land 
by  a  judgment  debtor,  for  a  valuable  consideration,  after  a  judg- 
ment has  become  a  lien  thereon,  and  pending  an  appeal,  will  not 
defeat  the  lien  of  the  judgment.     In  such  case  the  grantee  takes 

final  determinations  of  the  rights  of  Spencer  v.  Dearth,  43  Vt.  98;   Gates 

the  parties  in  the  action  are  classed  v.  Preston,  41  N.  Y.  113;  Finney  v. 

as  judgments,  without  reference  to  the  Boyd,  26  Wis.  366;  Eussell  v.  Place, 

subject-matter,  or  the  character  of  the  94  U.  S.  606. 

relief    granted.      In   these   codes   the  3  Foster    v.    The   Eichard    Busteed, 

•word  "decree"  is  not  used,  but  the  100  Mass.  409. 

term    "judgment"   is   substituted   in  4  Fish    v.    Lightner,    44    Mo.    268; 

its  place,  as  regards  actions  both  of  Land   v.   Keirn,  52   Miss.   341;   East- 

an  equitable  and  a  legal  nature.     In  man  v.  Porter,  14  Wis.  39. 

practice,  however,  both  by  the  bench  6  As  judgments  in  ejectment,  which, 

and  bar,  the  term  is  still  used  in  the  while    they    may    purport    to    confer 

sense  above  indicated.  only  the  right  of  possession  are  yet 

2  Geary  v.   Simmons,  39  Cal.   224 ;  conclusive  as  to  title, 
Warvelle  Abstracts — 30 


466  ABSTRACTS   OF    TITLE.  [§  448 

title  subject  to  the  lien,  and  a  sale  and  deed  made  on  execution 
under  such  judp:ment  will  pass  title,  unaffected  by  the  conveyance.* 

Where  the  abstract  shows  a  judgment  duly  rendered  against  any 
of  the  parties  in  interest  from  which  an  appeal  has  been  taken, 
notwithstanding  that  a  bond  has  been  given,  such  judgment  should 
be  noted  as  a  defect  of  title.  The  appeal  does  not  vacate  the  judg- 
ment nor  destroy  its  lien.  Its  only  effect  is  to  operate  as  a  stay 
of  proceedings  for  enforcement  during  the  pendency  of  the  appeal,' 
and  in  case  the  judgment  is  affirmed  it  has  practically  the  same 
force  and  effect  as  though  no  appeal  had   been  taken.* 

In  general,  personal  property  must  first  be  taken  upon  legal 
process,  and  it  is  a  universal  rule  that  this  is  the  primary  fund  for 
payment  of  debts,  after  the  death  of  the  debtor.^ 

A  judgment  lien  on  land  constitutes  no  property  in  the  land 
itself,^"  for  the  lien  is  but  an  incident,  not  the  object  of  the  judg- 
ment, and  the  judgment  creditor  is  not  entitled  to  any  advantage 
which  his  debtor  had  not.*^  Such  lien  is  subject  to  all  equities 
which  existed  against  the  land,  in  favor  of  third  persons,  at  the 
time  of  the  recovery  of  the  judgment,  and  wdth  a  failure  or  extin- 
guishment of  the  debtor's  title  the  lien  entirely  ceases  and  is  lost.*^ 

The  statute  usually  provides  that  the  judgment  shall  be  a  lien 
on  the  "real  estate"  or  "lands  and  tenements"  of  the  debtor  for 
a  specified  period,  but  is  sometimes  coupled  with  conditions  relative 
to  the  issuance  of  execution,  etc.,  the  observance  of  which  is  neces- 
sary to  perfect  the  lien.  The  terms  "real  estate"  or  "lands 
and  tenements,"  as  used  in  this  connection,  are  of  very  broad 
signification,  and  have  been  held  to  include  remainders  and  rever- 
sions vested  under  legal  titles,  as  well  as  legal  estates  in  possession,^' 
but  do  not  embrace  mere  equities  ^*  or  inchoate  rights ;  nor  does 
a  judgment  against  a  firm  create  a  lien  upon  the  individual  prop- 
erty of  the  partners,^^  although  if  they  are  all  made  defendants  they 

6 Dobbins  v.  Wilson,  107  111.  17.  lands    of    the    bankrupt;    Burgett    v. 

7  Oakes  v.  Williams,  107  111.  154.  Paxton,  99  111.  288. 

8  Walker  v.  Doanc,  108  111.  236.  13  Lawrence  v.  Belger,  31  Ohio  St. 

9  Mitchell  v.  Wood,  47  Miss.  231;  175;  Ducker  v.  Burnham,  146  HI.  9. 
Whitney  v.  Whitney,  14  Mass.  88.  14  Dixon   v.   Dixon,  81   N.   C.   323 ; 

10  School  Dist.  V.  Werner,  43  Iowa,  Powell  v.  Knox,  16  Ala.  364.  This 
643 ;  Conrad  v.  Ins.  Co.,  1  Pet.  378.  doctrine,    however,    is    not    universal, 

11  Reed's  Appeal,  13  Penn.  St.  475.  and    though    the    prevailing    one    yet 

12  Hydraulic  Co.  v.  Loughry,  72  in  several  of  the  States  it  is  denied : 
Ind.  562 ;  McBane  v.  Wilson,  12  Ee-  see  Lathrop  v.  Brown,  23  Iowa,  40 ; 
porter,  325;  Frazer  v.  Thatcher,  49  Jackson  v.  Williams,  10  Ohio,  69; 
Tex.  26.  A  judgment  recovered  Wallace  v.  Monroe,  22  111.  App.  602. 
against  a  person  after  he  is  adjudged  iRStadlcr  v.  Allen,  44  Iowa,  198. 
bankrupt,  will  not  be  lien  upon  the 


§  449]  JUDGMENTS   AND   DECREES,  467 

will  all  be  severally  liable,  and  all  the  incidents  of  a  judgment  ■will 
attach  to  their  several  estates.^^  The  general  rule  is,  that  a  partner- 
ship can  neither  sue  nor  be  sued  in  the  firm  name  and  that  in  all 
cases  the  individual  names  of  the  members  of  the  firm  must  appear. 
In  some  States  this  rule  has  been  changed  or  modified  by  statute 
but,  except  where  modified  by  statutory  provisions,  the  courts  are 
uniform  in  holding  that  a  judgment  rendered  for  or  against  a 
partnership  will  be  reversed  on  appeal.^'  There  is,  however,  much 
conflict  in  the  opinions  with  respect  to  the  validity  of  such  judg- 
ments. One  line  of  cases  holds  that  they  are  not  void  but  merely 
irregular,^^  and  that  they  will  be  sustained  where  no  objections  were 
made  prior  to  the  rendition.^^ 

§  449.  Territorial  Extent  of  Lien.  The  lien  of  a  judgment 
rendered  by  a  State  court  attaches  only  to  the  land  of  the  debtor 
situate  within  the  county  for  which  the  court  is  held,  or  in  which 
a  transcript  has  been  regularly  docketed,  and  a  certificate  covering 
only  the  county  courts  of  record  is  all  that  is  necessary  to  fully 
apprise  intending  purchasers  of  the  condition  of  the  title  so  far  as 
same  may  be  affected  by  the  adjudications  of  the  State  courts.^^ 

It  was  long  held  that  judgments  rendered  in  the  Federal  courts 
have  the  same  lien  on  the  lands  of  the  debtor  within  the  district 
that  is  given  to  the  judgments  of  the  State  courts  within  the 
limits  of  their  respective  territorial  jurisdictions,^!  and  there- 
fore, in  the  compilation  of  abstracts  it  was  quite  as  essential 
that  the  Federal  courts  of  the  district  should  be  covered  by  the 
search,  as  the  county  courts.  But  this  rule  has  been  greatly 
modified  of  late  years.  In  the  year  1888  by  an  act  of  Congress 
it  was  provided  that  judgments  of  Federal  courts  shall  be  liens 
"to  the  same  extent  and  under  the  same  conditions  only  as  if 
such  judgments  and  decrees  had  been  rendered  by  a  court  of 
general  jurisdiction  of  such  State,"  and  this  act,  it  is  contended, 
places  judgments  of  the  Federal  courts  on  the  same  basis  as 
judgments  of  the  State  courts  with  respect  to  their  effect  as 
liens.     Accordingly  it  has  been  held  that  where  a  State  statute 

16  Starry  v.  Johnson,  32  Ind.  438.  The  lien  of  a  judgment  of  the  Su- 

17  Lanf ord  v.  Patton,  44  Ala.  584 ;  preme  Court  is  co-extensive  with  the 
Dunham  v.  Shindler,  17  Oreg.  256,  20  territorial  limits  of  the  State:  Dur- 
Pac.  326.  ham  v.  Heaton,  28  111.  264. 

ISMyer  v.  Wilson,  166  Ind.  651,  76  21  Sellers   v.   Corwin,   5   Ohio,   398; 

N.  E.  748;  Davis  v.  Kline,  76  Mo.  310.  Shrew  v.  Jones,  2  McLean,  78;  Mas- 

19  See,  Cady  v.  Smith,  12  Neb.  628,  singill  v.  Downs,  7  How.  760 ;  Brown 
12  N.  W.  95.  V.    Pierce,    7    Wall,    205;    Branch    v. 

20  Baker   v.    Chandler,   51   Ind.    85.  Lowrey,  31  Tex.  96. 


468  ABSTRACTS   OF    TITLE.  [§449 

restricts  tlif  territorial  lien  of  a  jii(ii^iiieiit  to  llie  eouiity  in  which 
it  was  riMulered,  ami  to  counties  in  wliieli  a  transcript  is  filed, 
such  statute,  since  the  passajxe  of  the  law  of  1888,  prevents  the 
lien  of  a  Federal  judj^'inent  from  becoming?  operative  throuf^h- 
out  the  entire  district  and  subjects  it  to  the  restrictions  of  the 
State  law.22 

A  judfJTinent,  whctliei-  oi"  State  or  Federal  (tourts,  is  not  a 
specific  lien  ujion  any  i)aflirular  laud  of  the  judji^ment  debtor, 
l)ut  extends  ;j:enerally  upon  all  his  proprietary  holdinprs,  sub- 
ject to  prior  liens,  le|?al  or  equitable.^^ 

§  450.  Duration  of  Lien.  The  lien  of  judgments  upon  real 
estate  is  regulated  by  statute,  and  the  general  rule  is,  that  the 
lien  continues  for  ten  years  2*  from  the  rendition  of  the  judg- 
ment, and  no  longer,  except  that  in  a  few  enumerated  cases 
where  a  party  is  restrained  from  enforcing  his  judgment  by 
appeal,  injunction,  etc.,  the  time  so  consumed  is  excluded  from 
the  computation.  A  purchaser  from  a  judgment  defendant, 
after  the  expiration  of  ten  years  from  the  rendition  of  the  judg- 
ment, or  such  other  period  of  limitation  as  the  statute  may  pre- 
scribe, takes  the  land  discharged  from  the  lien  of  same,  unless  it 
has  been  preserved  by  some  of  the  exceptions  contained  in  the 
statute.^*  Ordinarily  a  search  for  judgments  covering  a  period  of 
ten  years  is  sufficient,  and  it  is  not  customary  for  the  examiner  to' 
certify'  judgments  for  a  longer  time.  Unless  specially  excepted, 
neither  injunction,  appeal,  nor  other  cause  will  have  the  effect  to 
prolong  the  lien  beyond  the  statutory  period,  as  against  a  pur- 
chaser from  the  judgment  debtor.^^ 

22  See  Blair  v.  Ostrander,  109  Iowa,  can  not  be  extended  in  equity:  Doug- 
204;  47  L.  R.  A.  469.  The  constitu-  lass  v.  Houston,  6  Hammond  (Ohio), 
tional  power  of  Congress  to  make  a       162. 

judgment  of  a  Federal  court  a  lien  24  In    some    States    for    a    shorter 

on  the  debtor's  property,  and  fix  the  period.      Thus,    in    Illinois    for    only 

duration  and  territorial  extent  of  the  seven  years. 

lien,   is   declared   in   Dartmouth    Sav.  26  Applegate    v.    Edwards,    45    Ind. 

Bank  v.  Bates,  44  Fed.  Rep.  546,  and  329;   Gridley  v.  Watson,  53  111.   186. 

other  cases  sustain  the  doctrine.     But  The  limitation  period  in  some  States 

it  has  always  been  the  policy  of  Con-  is   less   than  ten  years;   thus  in  Illi- 

gress  to  conform  such  liens,  as  well  nois,    the    time    is    seven    years.      In 

as  the  processes  of  the  Federal  courts,  most    instances,    however,    the    period 

to  those  of  the  State  courts.  is    fixed    at   ten   years,   as   .stated    in 

23  Rodgers  v.  Bonner,  45  N.  Y.  379;  the    text. 

Vaughan  v.  Schmalsle,  10  Mont.   186,  26  Tucker    v.    Shade,    25    Ohio    St. 

25  Pac.  102.  Judgment  liens  being  355.  The  lien  of  a  judgment  is  a 
purely  legal,  should  they  fail  at  law,       qualified    right,    given    by    law,    and 


§  451]  JUDGMENTS   AND   DECREES.  469 

There  is  some  imeertaiuty  with  respect  to  the  territorial  ex- 
tent of  judgments  rendered  in  the  United  States  courts.  Prior 
to  the  act  of  1888  it  was  the  invariable  rule  that  a  judgment 
rendered  in  the  Federal  courts  has  the  same  lien  on  the  lands 
of  the  debtor  within  the  district  that  is  given  to  a  judgment  of 
a  State  court  within  the  limits  of  its  territorial  jurisdiction;  2' 
but,  however  this  may  be,  there  is  no  uncertainty  with  respect 
to  its  termination  for  it  is  provided  that  "judgments  and  de- 
crees rendered  in  a  United  States  circuit  or  district  court,  within 
any  State,  shall  cease  to  be  liens  on  real  estate  or  chattels  real, 
in  the  same  manner  and  at  like  periods  as  judgments  and  decrees 
of  the  courts  of  such  State  cease,  by  law,  to  be  liens  thereon. ' '  ^8 

§  451.  Priority.  It  has  been  held,  that  neither  judgment  cred- 
itors nor  purchasers  at  sheriflf' s  sale,  deriving  rights  by  operation 
of  law,  are  regarded  as  purchasers  for  a  valuable  consideration, 
but  as  mere  volunteers  in  contemplation  of  a  court  of  equity ,2^ 
and  that  the  general  lien  of  a  judgment  creditor  upon  the  lands 
of  his  debtor  is  subject  to  all  equities  which  existed  against  such 
lands,  in  favor  of  third  persons,  at  the  time  of  the  recovery  of 
the  judgment.^**  Generally  this  is  true,  yet,  under  the  statute, 
as  it  exists  in  a  majority  of  the  States,  the  lien  of  a  docketed 
judgment,  lawfully  obtained  at  the  suit  of  any  party  against  the 
person  in  whose  name  the  title  to  such  land  appears  of  record, 
will  have  priority  over  an  unrecorded  mortgage,  or  deed.'^  These 
statutes  protect  judgment  creditors  as  bona  fide  purchasers  for  a 
valuable  consideration  whose  liens  arise  while  the  record  title 
appears  in  the  judgment  debtor,  although  in  fact  he  may  have 
conveyed  the  property. 

may  be  taken  away  by  law:     Hous-  mere   notice   of  the   prior   judgment, 

ton  V.  Houston,  67  Ind.  276,  and  when  either  actual  or  constructive,  will  not 

the   law   is   repealed   upon   which   the  render  the  purchase  mala  fide:  Little 

lien  depends,  the  lien  is  destroyed  by  v.  Harvey,  9  Wend.  157. 

the  repeal:    Eay  v.  Thompson,  43  Ala.  27  Sellers  v.   Corwin,   5   Ohio,   389; 

434.      A   familiar   form    of   statutory  Shrew  v.  Jones,  2  McLean,  78;   Mas- 

exjjression  is,  that  the  judgment  shall  singill  v.  Downs,  7  How.  760. 

cease  to  be  a  lien  or  incumbrance  on  28  U.  S.  Eev.  Stat.,  §  967 ;  see  Mey- 

any  real  estate,  as  against  purchasers  ers  v.  Tyson,  13  Blatchf.  242. 

in     good     faith,     subsequent     incum-  29  Davis  v.  Hamilton,  50  Miss.  312. 

brancers,  etc.,  but  within  the  meaning  30  Hydraulic    Co.    v.    Loughry,    72 

of  such  an  act,  all  purchasers  are  to  Ind.    562;    Apperson    v.    Burgett,    33 

he   considered   as   purchasers  in  good  Ark.  328. 

faith,  except  those  who  purchase  with  31  Lash  v.   Hardick,  5  Dillon,  505 ; 

an     actual     fraudulent     intent,     and  Wood  v.  Young,  38  Iowa,  102;  Miss. 


470  ABSTRACTS   OF   TITLE.  [§  451 

As  between  judgment  creditors  there  is  no  general  rule  respect- 
ing priority,  the  matter  being  usually  regulated  by  statute.    Judg- 
ments rendered  at  the  same  term  of  court,  or  on  the  same  day  in 
vacation,   ordinarily   have   no   priority   over   each   other,    but   this 
is  by  no  means  a  uniform  observance,  and  it  has  been  held,  that 
when  several  judgments  are  rendered  at  the  same  term  of  court, 
but  on  different  days,  such  judgments  do  not  relate  to  the  first 
day  of  the  term  and  become  effective  as  of  that  date,  but  are  liens 
on  the  real  estate  of  the  judgment  debtor  only  from  the  dates 
at  which  they  are  respectively  entered  or  docketed,  and  take  pri- 
ority accordingly .32    As  a  rule  the  law  does  not  regard  fractions 
of  a  day  and  all  acts  done  upon  the  same  day  are  to  be  taken  as 
done  at  the  same  time.    Yet,  where  it  is  necessary  to  justice,  and 
can  be  done,  this  rule  will  be  made  to  yield  to  the  exigencies  of 
the  particular  case.    Thus,  where  the  hour  itself  may  become  ma- 
terial; as  where  a  lieu  attaches  upon  the  doing  of  an  act,  or  in 
behalf  of  the  party  who  asserts  it  or  seeks  to  fasten  same  on  prop- 
erty, the  fraction  of  a  day  may  be  considered  in  determining  a 
question  of  priority.    In  the  matter  of  apparently  concurrent  judg- 
ments this  latter  doctrine  has  frequently  been  applied  and  the 
preference  given  to  the  one  first  entered.^^     As  before  remarked, 
however,  the  application  of  this  doctrine  is  largely  a  matter  of 
statutory  dirction  and  construction. 

When  lands  are  incumbered  simultaneous  with  their  acquisi- 
tion, tlie  incumbrance  being  to  secure  the  unpaid  purchase  money, 
the  authorities  are  uniform  in  declaring  that  such  incumbrance 
will  take  priority  over  the  lieu  of  a  judgment  already  docketed.^* 
' '  The  reason  for  this  is  readily  found, ' '  observes  Freeman,  ' '  when 
we  remember  that  it  is  a  universally  recognized  principle  of  law 
that  no  judgment  lien  can  be  a  charge  upon  any  greater  inter- 
test  than  the  defendant  owns.  A  purchaser  who  has  paid  only  a 
portion  of  the  sum  contracted  to  be  paid,  has  no  title  which  is  not 
liable  to  be  subjected  to  the  lien  of  the  vendor  for  unpaid  pur- 
chase money.  A  judgment  against  such  a  vendee  must,  therefore, 
be  subordinate  as  a  lien  to  that  held  by  the  vendor;  and  for  this 
purpose,  it  is  perfectly  immaterial  whether  the  claim  is  put  in  the 

Valley    Co.    v.    R.    E.    Co.,    58    Miss.  29;    Lang   v.    Phillips,   27   Ala.   311; 

846;    Guiteau  v.   Wisley,   47   111.   433.  Murfree  v.  Carmack,  4  Yerg.  (Tenn.) 

82  Anderson  v.  Tuck,  33  Md.  225.  270. 

83  Mitchell  v.  Schoonover,  16  Oreg.  34  Curtis  v.  Root,  20  111.  53 ;  Roane 
211;    Coal    Co.    v.    Barber,    47    Kan.  v.  Baker,  120  111.  308. 


§  453]  JUDGMENTS   AND   DECREES.  471 

shape  of  a  vendor's  lien,  or  of  a  mortgage  to  secure  the  payment 
of  purchase  money  .^"^ 

§452.  After-acquired  Property.  It  is  a  well  established  doc- 
trine, that  the  lien  of  a  judgment  attaches  to  and  binds  land, 
the  title  to  which  is  subsequently  acquired  by  the  judgment  debt- 
or, and,  where  the  statute  is  silent  on  the  subject,  this  rule  has 
been  generally  received  and  acted  upon  throughout  the  United 
States.36  The  lien  does  not  take  effect  by  relation  as  of  the  date 
of  the  judgment,  but  attaches  to  such  after-acquired  property 
only  from  the  time  it  is  acquired  by  the  judgment  debtor,  and 
the  liens  of  all  judgments  in  existence  when  the  debtor  obtains 
the  property  attach  alike.^'' 

§  453.  Docketing".  The  general  rule  seems  to  be,  that  before  a 
judgment  can  become  a  lien  it  must  be  regularly  docketed.  That 
is,  be  entered  of  record  in  such  books  as  the  statute  requires  to 
be  kept.  This,  it  is  said,  is  the  only  proof  of  a  judgment  and 
hence  essential  to  its  validity.^®  In  some  instances  it  has  even  been 
held  that  the  record  is  not  complete  until  an  entry  has  been  made 
in  the  index,^^  and  that  an  omission  in  this  particular  is  fatal  to 
the  lien.  On  the  other  hand,  some  of  the  cases  hold  that  docket- 
ing is  not  an  essential  of  the  efficacy  of  a  judgment  nor  a  condi- 
tion precedent  to  issuing  execution  thereon,  but  is  a  necessary  con- 
dition for  the  purposes  of  a  lien.*°  Others  have  gone  so  far  as  to 
declare  that  the  lien  of  a  judgment  is  not  lost  by  the  failure  of  a 
clerk  to  enter  the  rendition  in  the  docket,  although  the  land  af- 
fected by  such  judgment  lien  may  have  passed  into  the  hands  of  a 
bona  fide  holder  without  notice." 

It  will  be  seen,  therefore,  that  the  authorities  are  not  in  accord 
upon  this  subject,  and  that  local  law  and  usage  is  the  only  safe 
guide. 

86  See  contra,  Eyner  v.  Frank  105  39  ^tna  Ins.  Co.  v.  Hesser,  77  Iowa, 

Ill_  326.  381;   Grouse  v.  Murphy,  140  Pa.  St. 

36  Thulemeyer  V.  Jones,  37  Tex.  560.  335;    and    see,    Dewey   v.    Sugg,    109 

37Coyce  V.   Stovall,  50  Miss.   396;  N.  C.  328,  13  S.  E.  923. 

Babcock    v.     Jones,     15     Kan.     296;  40  Bernhardt  v.   Brown,   122   N.   C. 

Wales  V.  Bogue,  31  111.  464.  587. 

38  Callanan   v.   Votruba,   104   Iowa,  41  Johnson   v.    Schloesser,    146    Ind. 

672;   Davis  v.   Steeps,   97   Wis.   472;  509. 
Kockwood  V.  Davenport,  37  Minn.  533. 
But  see,  Durant  v.  Comegys,  2  Idaho, 
809. 


472  ABSTRACTS   OF    TITLE.  [§  454 

§  454.  Formal  Requisites  of  Judgments.  No  set  form  of  words 
is  necessary  to  be  employed  in  rendering  judgments,"  provided 
they  are  certain  and  find  the  sum  for  -wliich  they  are  rendered, 
but  failing  in  this,  they  are  fatally  defective.*^  The  certainty 
required  has  reference  both  to  the  parties  and  the  recoveiy,  for 
the  jndgment  is  regarded  as  a  unit  and  must  comprehend  all 
the  jiarties  tlien  before  the  court,  while  the  recovery  must  be  cer- 
tain and  specific  in  the  amount  with  nothing  left  to  implication; 
thus  a  judgment  for  "four  hundred  and  sixty-one  and  53-100 
damages"  is  not  for  a  certain  definite  sum  of  money,  and  is  there- 
fore a  nullity,**  and  where  only  numerals  are  used  without  some 
mark  or  word  indicating  for  what  they  stand,  the  judgment  is 
insufficient.*^  Otherwise,  to  constitute  a  judgment  record  valid 
upon  its  face  so  that  it  may  be  enforced  by  action,  nothing  more 
need  appear  by  it  than  that  the  court  had  jurisdidion  of  the  sub- 
ject-matter of  the  action  and  of  the  parties,  and  that  a  judgment 
was  in  fact  rendered.*^ 

It  is  customary,  as  well  as  ])roi)or,  in  making  the  entry,  to  set 
out  the  names  of  the  parties  against  whom  the  judgment  is  ren- 
dered, but  it  seems  that  a  judgment  is  not  void  for  vagueness  or 
indefiniteness,  although  it  fails  in  the  recitals  thereof  to  give  the 
names  of  the  plaintiffs  or  defendants  for  and  against  whom  it  is 
rendered  and  designates  them  only  by  reference  to  the  title  of  the 
cause.  Thus,  a  judgment  against  "said  defendants,"  the  title  of 
tlie  cause  being  stated,  is  sufficient.*''^  And,  generally,  an  obscure 
judgment  entry  may  be  construed  with  reference  to  the  pleadings 
and  record.** 

In  the  abstract  it  is  the  general  practice  to  give  the  name  of  the 
forum,  together  with  the  case  number  or  some  other  index  for  the 

42  Guild  V.  Hall,  91  111.  223;  Church  notwithstanding  an  entry  or  direction 
V.    Oossman,   41   Iowa,   373.  for    entry    has    been    signed    by    the 

43  Ry,  Co.  V.  Chicago,  53  111.  80;  .iudge  and  endorsed  by  the  clerk  as 
Carpenter  v.  Sherfy,  71  111.  427;  Li-  "filed."  Callanan  v.  Vatruba,  104 
rette  v.  Carrane,  27  La.  Ann.  298;  Iowa,  672;  Eockwood  v.  Davenport, 
Randolph  v.  Metcalf,  6  Coldw.  37  Minn.  533.  But  see,  Durant  v. 
(Tenn.)   400.  Comegys,    2    Idaho,   809;    Johnson    v. 

44  Carpenter  v.  Sherfy,  71  111.  427.  Schloesscr,  146  Ind.  509. 

45  Lawrence  v.  Fast,  20  111.  338;  47  Bank  of  Athens  v.  Garland,  109 
Avery  v.  Babcock,  35  111.  175.  ]Mich.    515;    Taylor    v.    Branham,    35 

46  Maxwell  v.  Stewart,  22  Wall.  77.  Fla.  297,  17  So.  552,  39  L.  R.  A.  362. 
It  has  been  held  that  a  judgment  is  48  See,  Fowler  v.  Doyle,  16  Iowa, 
not  rendered,  so  as  to  be  a  lien  from  534 ;  McCartrey  v.  Kittrell,  55  Miss, 
the  time  of  its  "rendition,"  until  it  253;  Smith  v.  Chenault,  48  Tex.  455. 
has    been    entered    upon    the    record, 


§  454]  JUDGMENTS   AND   DECREES.  473 

purpose  of  reference ;  the  full  title  of  the  ease,  and  a  statement  of 
the  fact  of  judgment,  together  with  the  amount  for  which  it  was 
rendered.  A  synopsis  of  the  judgment  is  rarely  given,  nor  is  it 
at  all  necessary,  yet  the  examiner  should  always  carefully  read 
the  judgment  roll  for  errors  of  form  or  substance ;  as  the  omission 
of  parties,  imperfect  recitals  of  recovery,  etc.  Where  the  judgment 
becomes  dormant  unless  followed  by  execution  it  becomes  necessary 
to  show  the  issuance  and  return  of  the  execution,  provided  such 
facts  appear  of  record.  A  minute  of  judgments  in  personam  may 
be  made  in  this  manner : 

Judgments. 


Henry  W.  Newman 
vs. 
William  Jasper. 


In  the  Superior  Court  of  Cook  County,  III. 
Case  No.  53,166. 
Assumpsit. 
I     Fee  Book  35,  page  585. 

Judgment   rendered   against   defend- 
ant, Dec.  9,  1874,  for  $634.92. 
Execution  No.  22,993  issued,  dated  Dec.  9,  1874,  returned  no 
part  satisfied. 

Any  additional  matter  that  may  seem  material,  as,  the  issuance  of 
alias  or  pluries  executions;  remission  or  satisfaction  of  any  part 
of  the  judgment,  etc.,  may  be  shown  after  this  point,  with  such 
detail  as  may  be  necessary,  thus: 

Dec.  18, 1874,  Plaintiff  remits  $103.61. 

Dec.  20,  1874,  Execution  (alias)  issued  and  returned  satisfied 
for  $100.00.^ 

Where  the  lien  of  the  judgment  is  independent  of  execution  the 
note  of  issuance  of  same  is  immaterial,  except  as  it  may  tend  to 
show  a  reduction  or  partial  satisfaction;  but,  in  many  of  the 
States,  when  execution  is  not  issued  on  a  judgment  within  a  speci- 
fied time,  varying  from  one  to  five  years  from  the  time  of  its  ren-. 
dition,  the  lien  thereafter  ceases  and  is  lost.^**  Executions  may 
also  become  operative  as  liens  from  the  time  they  are  delivered 

49  For  a  method  of  procedure  where  60  See,    Kirby    v.    Runals,    140    IlL 

a  judgment  is  followed  by  execution       289 ;    Beadles  v.   Fry,   15   Okla.   428, 
sale,  see  §  472.  82  Pac.  1041,  2  L.  R.  A.  (N.  S.)  855. 


474  ABSTRACTS  OF   TITLE.  [§  454 

to  the  sheriff,  or  other  proper  officer,  to  be  executed,  when  issued 
during  the  statutory  period,  even  thougli  the  general  lien  of  the 
judgment  has  been  lost  by  laches.^^  Wherever  the  rule  last  stated 
prevails  the  issuance  of  execution  becomes  almost  as  important  as 
the  rendition  of  tlie  judgment,  and  in  abstracting  the  judgment, 
careful  search  nuist  also  be  made  for  executions,  and  should  none 
appear  of  record  it  would  seem  that  such  fact  should  be  affirma- 
tively stated  rather  than  left  to  inference.  There  can  be  no  doubt 
that  this  course  would  frequently  save  inquiries  by  counsel  and 
greatly  expedite  his  labors.  The  fact  may  be  shown  by  a  brief 
statement  immediately  following  the  abstract  of  the  judgment. 
Thus : 

It  does  not  appear  from  the  Judgment  Docket  that  any  execution 
has  heen  issued  under  the  above  judgment. 

In  continuations,  where  the  former  examination  shows  a  judg- 
ment upon  which  no  execution  appears  to  have  issued  prior  to  the 
date  of  such  examination,  the  subsequent  steps,  if  any,  should  ap- 
pear in  the  continuation,  either  by  re-exhibiting  the  judgment  and 
resulting  proceedings,  or  by  setting  forth  the  substance  of  such  pro- 
ceedings in  a  note.^^ 

Occasionally  a  judgment  will  be  found  which  has  been  entered 
against  the  plaintiff  in  the  suit.  Usually  this  will  be  for  costs  only 
in  a  case  where  the  suit  has  been  dismissed.  The  judgment,  though 
small,  is  yet  a  lien  on  the  plaintiff's  land  and  a  legal  encumbrance. 
As  such  it  should  always  be  shown  in  an  abstract  of  his  title.  A 
brief  mention  is  all  that  is  necessary  and  the  transaction  may  be 
shown  as  follows : 

Arnold  Black     ]     In  the  Circuit  Court  of  Cook  County,  III. 

vs.  \-     Case  95,432. 

Charles  White     J      Garnishment, 

Suit  dismissed  March  9,  1918,  at  Plaintiff's  costs  and  judgment. 

The  foregoing  precedents  represent  abstracts  of  judgments  in 
their  most  simple  forms.  But  sometimes  there  will  be  incidental 
matters  that  should  be  shown  in  the  abstract.     This  will  include 

61  These  provisions,   however,   have  62  See  also,  * '  Satisfatftion  and  Dis- 

ref erence  more  to  personalty  than  to      charge, ' '  infra,  §  459. 
realty. 


§  455]  JUDGMENTS   AND   DECREES.  475 

dismissals,  where  there  are  several  defendants;  appeals  from  the 
judgment,  when  allowed,  and  other  special  features.  These  should 
all  be  noticed  but  brief  mention  is  all  that  is  necessary  in  most 
cases.  The  following  will  suggest  a  method  of  treatment  of  these 
matters. 

William  Black  ')  In  the  Superior  Court  of  Cook  Comity,  III. 

vs.  [  Case  No.  65932. 

James   White  and  f  Assumpsit. 

Thomas  Brown  J  Fee  Book  40,  page  25. 

January  21,  1920,  suit  dismissed  as  to  defendant  James  White. 
March  7,  1920,  judgment  rendered  against  defendant  Thomas 
Brown,  for  $1,500  and  costs. 
Appeal  allowed. 

§  455.  Antecedent  Proceedings.  It  is  not  customary,  in  ab- 
stracting a  judgment,  to  show  anything  more  than  the  mere  fact  of 
rendition  in  the  manner  heretofore  indicated.  But  in  making  the 
search  the  entire  judgment  roll  should  be  perused  by  the  examiner 
for  possible  defects.  While  the  law  implies  a  presumption  of  regu- 
larity, and  of  all  jurisdictional  facts  in  cases  where  the  record  is 
silent,^*  yet  where  the  record  states  what  was  done  this  presump- 
tion does  not  apply .^*  Thus,  it  will  be  presumed,  in  the  absence  of 
anything  to  the  contrary,  that  a  personal  service  of  process  was  had 
upon  the  defendant.  But  if  the  record  shows  something  different, 
as  that  the  service  was  by  publication,  the  legal  presumption  cannot 
be  permitted  to  aid  the  record.  A  familiar  example  is  furnished 
in  the  case  of  a  deficiency  judgment  on  foreclosure.  If  the  record 
affirmatively  discloses  that  the  service  was  by  publication,  particu- 
larly if  the  defendant  was  a  non-resident  of  the  State,  such  a  judg- 
ment would  be  void  and  no  lien  would  be  created.^* 

Again,  a  personal  judgment  must  as  a  rule,  be  preceded  by  a  per- 
sonal service  of  summons  to  appear  and  answer  the  plaintiff's  de- 
mand. It  will  often  happen,  however,  that  the  defendant  was 
not  served  with  process,  but  voluntarily  appeared  in  the  case  by 
attorney.  It  is  always  presumed  in  favor  of  a  judgment  based  on 
the  appearance  of  an  attorney,  that  the  attorney  was  duly  author- 
ized for  such  purpose,  even  where  there  is  an  appearance  without 

63  Galpin  v.  Page,  18  "Wall.  (U.  S.)  and    see,    Griffith    v.    Harvester    Co., 

350.  92    Iowa,    634;    Willamette,    etc.    Co. 

54  Hahn  v.  Kelly,  34  Cal.  391.  v.  Hendrix,  28  Oreg.  485. 
65Latta  V.   Tutton,   122   Cal.   279; 


47H  ABSTRACTS   OF   TlTlyE.  [§  455 

sorvifo.*^  and  in  a  (Mtllateral  proceediiif;  this  j)rosuini)ti()n  is  con- 
clusive.*' If  the  attorney  Avas  ^vithout  authority  the  judfjinent  will 
be  set  aside  on  motion  or  may  be  enjoined  in  equity,  but,  until 
some  move  of  this  kind  is  made,  the  courts,  from  reasons  of  public 
policy,  will  hold  the  appearance  good  and  the  proceedings  valid. 
Still,  it  would  seem  to  be  the  better  plaji,  where  a  .iudgment  is  ren- 
dered without  service  and  on  appearance  of  attorney  only,  t(»  show 
these  facts  in  the  abstract.  , 

§  456.  Judgment  Against  a  Deceased  Person.  It  is  a  rule  of  the 
common  law,  and  one  generally  observed  in  all  the  States,  that  a 
judgment  against  a  deceased  person  is  void,  and  the  fact  that 
service  may  have  been  obtained,  or  the  suit  commenced  before  the 
death  of  the  party,  in  the  absence  of  any  statutory  provision  on  the 
subject,  does  not  affect  the  operation  of  the  rule.*' 

It  has  been  held  in  a  large  number  of  cases,  however,  that  wliere 
a  court  has  once  acquired  jurisdiction  of  the  parties  and  the  sub- 
ject-matter of  an  action,  a  judgment  rendered  against  a  ])art3-  after 
his  death  is  not  void,  if  the  death  has  not  been  suggested  upon  the 
record,  but  only  voidable,  and  this  doctrine  seems  to  have  been 
adopted  in  a  number  of  States.  It  is  conceded  that  the  rendition 
of  such  judgment  is  erroneous,  and  hence  subject  to  be  set  aside 
or  vacated  on  motion  timely  made.*® 

Tlie  subject  possesses  a  further  interest  for  the  examiner  of  titles 
in  cases  where  a  joint  judgment  has  been  rendered  against  several 
persons,  one  of  whom,  at  the  time  of  such  rendition,  is  dead.  The 
authorities  are  not  in  full  accord  as  to  the  effect  of  such  judgment, 
but  the  better  rule  would  seem  to  be  that  it  should  be  regarded  as 
a  unit  with  respect  to  all  of  the  defendants  and  hence  void  as  to 
all,  or,  at  least,  subject  to  collateral  attack.^ 

§  457.  Judgments  Against  Infants.  The  general  status  of  in- 
fants has  heretofore  been  referred  to  and  the  dangers  attendant 

66  Arnold  v.  Nye,  23  Mich.  286;  IkhI  been  issued  and  levied  during 
Fergusen  v.  Crawford,  70  N.  Y.  253.  the    lifetime    of    such    defendant,    a 

67  Williams  v.  Johnson,  112  N.  C.  sale  after  his  deatli  will  be  valid 
^-4.  without  any  notice   to   his  legal  rep- 

68  Burke  v.  Stokely,  65  N.  C.  569;  resentatives  on  revivor  by  scire /rtoifl.s. 
Life  Assoc,  of  America  v.  Fassett,  69  See,  Hayes  v.  Shaw,  20  Minn. 
102  111.  315;  Weis  v.  Aaron,  75  Miss.  405;  Yaple  v.  Titus,  41  Pa.  St.  203; 
138.  Where  the  judgment  was  recov-  Jennings  v.  Simpson,  12  Neb.  565; 
ered  prior  to  defendant's  death  it  Coleman  v.  McAnulty,  16  Mo.  177; 
may  be  revived  and  enforced  against  Ried  v.  Holmes,  127  Mass.  326. 

his  estate  by  sci  fa:    Brown  v.  Par-  60  Claflin   v.    Dunne,    129    111.    241; 

ker,   15  111.  307.    While  if  execution       Weis  v.  Aaron,  75  Miss.  128. 


§  459]  JUDGMENTS   AND   DECREES.  477 

upon  the  state  pointed  out.  It  may  be  said,  liowever,  that  while  the 
statute  usually  provides  that  infant  parties  must  be  represented  by 
g:uardian,  either  general  or  ad  litem,  yet  a  judgment  rendered 
against  an  infant  for  whom  no  guardian  has  been  appointed  is  not, 
for  that  reason,  void.  If  he  in  fact  appeared  in  the  action,  and 
an  appearance  by  attorney  wall  be  presumed  to  have  been  author- 
ized, the  judgment  will  be  merely  voidable  at  his  instance  season- 
ably expressed.*^  If  he  desires  to  vacate  such  judgment  he  must 
move  for  same  promptly  on  coming  of  age.  An  unexcused  delay 
will  bar  his  right.^^ 

§  458.  Exemptions.  The  homestead  acts  of  the  different  States 
have  created  an  exception  to  the  general  rule  which  subjects  the 
lands  of  the  debtor  to  the  lien  of  judgments  recovered  against  him, 
and  an  exemption  from  levy  and  forced  sale  is  made  of  certain 
lands  which  shall  be  occupied  by  the  debtor  as  a  homestead.  This 
exemption  consists  either  of  a  specific  allotment  of  land  determined 
by  fixed  boundaries,  or  of  an  estate  of  limited  duration,  measured 
by  a  definite  money  value  and  without  reference  to  the  quantity 
of  land  occupied.  The  lien  of  the  judgment  does  not  affect  such 
homestead,  either  in  the  possession  of  the  judgment  debtor  or  his 
grantee.^'  The  only  exception  to  this  rule,  where  any  exception  is 
permitted,  is  where  the  debt,  for  which  the  judgment  was  rendered, 
is  a  liability  incurred  for  the  purchase  or  improvement  of  the 
land.6* 

§459.  Satisfaction  and  Discharge.  Judgments  may  be  dis- 
charged by  an  entry  upon  the  record ;  by  a  formal  release  or  satis- 
faction filed  in  the  case ;  ^^  or  by  a  return  of  the  execution  fully 
satisfied.  The  particular  method  employed  is  of  little  moment  to 
the  examiner  and  only  noticed  by  him  in  case  of  a  continuation, 
where  the  former  examination  shows  a  subsisting  unsatisfied  judg- 
ment. Even  in  this  instance  it  is  not  absolutely  necessary  that  it 
be  noticed  in  the  abstract,  as  his  certificate  to  the  effect  that  there 
are  no  judgments  unsatisfied  of  record  would  be  sufficient  to  show 
the  discontinuance  of  the  lien,  yet  it  is  recommended  as  the  better 
practice,  that,  where  the  former  examination  shows  unsatisfied  judg- 

61  Childs    V.    Lanterman,    103    Cal.  64  Bush  v.  Scott,  76  111.  524. 

387;    Kemp    v.    Cook,    18    Md.    130;  65  The    satisfaction    piece,    though 

Cohn  V.  Baer,  134  Ind.  375.  filed,  is  not  a  record,  but  a  mere  war- 

62  Eisenmenger  v.  Murphy,  42  Minn.  rant  to  the  clerk  to  enter  satisfac- 
84.  tion  on  the  roll:  Lowns  v.  Eemsen,  7 

68  Green  v.  Marks,  25  111.  221.  Wend.   (N.  Y.)   35. 


478  ABSTRACTS   OF    TITLE.  [§  459 

monts,  but  wliich  subsequent  to  the  date  of  sueh  examination  and 
prior  to  that  of  the  continuation  have  been  discharfi;ed  or  satisfied, 
and  wliicli  if  unsatisfied  -svould  still  be  a  lien,  such  satisfaction  or 
discharpre  sliould  aflfirmatively  appear.  A  simple  note  will  in  most 
cases  be  all  that  is  required,  thus : 

Note. — In  case  No.  40,075  in  the  Superior  Court  of  Cook  County 
(Smith  V.  Jones),  judgment  was  rendered  against  the  defend- 
ant, on  October  10,  1872,  for  $250  and  costs,  which  was  satis- 
fied of  record  Decemher  1,  1872,  hy  plaintiff's  attorney. 

To  this  simple  statement  may  be  added  the  mention  of  any  other 
matter  which  may  seem  material,  as: 


Execution  No.  18,139  issued  thereon  dated  October  11,  1872,  is 
not  returned. 

§  460.  Decrees  Classified  and  Distinguished.  Decrees  are  classi- 
fied as  interlocutory  and  final,  the  former  being  one  which  only 
partially  disposes  of  the  subject-matter,  or  of  a  particular  portion 
thereof,  leaving  something  still  to  be  done ;  the  latter,  disposing  of 
the  whole  subject,  deciding  all  questions  in  controversy,  ascertain- 
ing the  rights  of  all  the  parties,  and  awarding  the  costs.^^  The 
fact  that  something  remains  to  be  done  to  carry  out  or  enforce  the 
decree  does  not  render  it  any  the  less  final,^''  but  the  true  test  seems 
to  be,  that  no  further  necessity  exists  for  bringing  the  cause  again 
before  the  court.^* 

66  Taylor  v.  Reed,  4  Paige,  561 ;  material  circumstance  or  fact  nee- 
Mills  V.  Hoag,  7  Paige,  18;  Kane  v.  essary  to  be  made  known  to  the 
Whittick,  8  Wend.  224.  court    is    either    not    stated     in    the 

67  To  avoid  the  confusion  incident  pleadings,  or  is  so  imperfectly  ascer- 
to  the  use  of  the  word  judgment,  in  tained  by  them  that  a  court  is  unable 
two  senses,  one  as  interlocutory,  and  to  determine  finally  between  the  par- 
the  other  as  final,  the  codes  of  many  ties;  and  therefore,  a  reference  to,  or 
of  the  States  designate  the  former  as  an  inquiry  before  a  master,  or  a  trial 
orders,  and  do  not  recognize  such  a  of  facts  before  a  jury  becomes  neces- 
thing   as   an   interlocutory  judgment.  sary,  the  decree  entered  for  that  pur- 

68  Mills  V.  Hoag,  7  Paige,  18 ;  pose  is  an  interlocutory  decree.  The 
Butler  V.  Lee,  33  How.  251.  An  in-  court,  in  the  meantime,  suspends  its 
terlocutory  decree  is  properly  a  de-  final  decree,  until  by  the  master's  re- 
cree  pronounced  for  the  purpose  of  port,  or  verdict  of  the  jury,  it  is 
ascertaining  matter  of  law  or  fact  enabled  to  decide  finally:  1  Barb.  Ch. 
preparatory  to  a  final  decree.  There-  Prac.  *  326;  Seaton  on  Decrees,  2;  1 
fore,     when  it     happens     that     some  Harr.  Ch.  Prac.  420. 


§  462]  JUDGMENTS   AND   DECREES.  479 

§  461.  Operation  and  Effect  of  Decrees.  A  formal  decree  oper- 
ates differently  from  a  judgment,  but  its  effect  is  the  same,  and  the 
same  general  rules  apply  with  equal  force  to  either.  As  res  adjudi- 
cata  it  is  conclusive  upon  the  question  actually  presented  or  directly 
involved,^^  though  not  upon  collateral  issues,'^®  and  embraces  not 
only  the  questions  actually  contested  and  determined,  but  also  all 
those  which  might  have  been  if  they  had  been  seasonably  pre- 
sented.'''^ It  is  binding  on  parties  and  privies  and  imports  such  abso- 
lute verity  that  it  can  not  be  attacked  collaterally  on  account  of 
mere  irregularities  in  the  proceedings  by  one  not  a  party  in  in- 
terest,'''^ nor  can  defects  therein  be  set  up  by  a  stranger  to  the 
record,  for  the  purpose  of  defeating  a  claim  of  right  to  land  based 
thereon.'''*  It  is  evidence  of  itself  to  sustain  a  conveyance  made 
under  it,'''*  but  where  it  does  not  in  terms  divest  the  title  of  the  de- 
fendant, but  merely  directs  the  execution  of  a  deed,  until  such 
execution,  the  legal  title  remains  in  the  defendant.''^  A  reversal 
of  the  decree  does  not  divest  the  title  of  a  purchaser  thereunder 
in  good  faith,'''^  who  is  a  stranger  to  the  record,  but  all  rights  ac- 
quired by  parties  to  the  suit  as  purchasers  of  the  land  under  the 
decree,  fall  with  the  reversal.'^'^  A  decree  upon  a  matter  not  in- 
volved by  the  cause,  nor  in  issue  by  the  pleadings,  is  coram  non 
judice  and  void,'''^  and  will  be  treated  as  a  nullity,  even  in  a  col- 
lateral proceeding .'''® 

§  462.  Decrees  Rendered  on  Constructive  Notice.     The  remarks 

of  the  last  section  must  be  understood  to  apply  more  particularly 

69  Geary  v.  Simmons,  39   Cal.  224;  489;   Hungerf  ord 's  Appeal,  41  Conn. 
Cannon  v.  Brame,  45  Ala.  262;   Fos-  322;  Talbot  v.  Todd,  5  Dana,  193. 
ter  V.  The  Eichard  Busteed,  100  Mass.  72  Myler  v.  Hughes,  60  Mo.  105. 
409;    People   v.   Brislin,   80   111.   423;  73  Lathrop  v.  American  Emig.  Co., 
State  V.  Eamsburg,  43  Md.  325.  When  41  Iowa  547;  Pettit  v.  Cooper,  9  Lea 
a  judgment  or  decree  is  rendered  by  (Tenn.),  21. 

consent,  or  as  the  result  of  a  com-  74  Grebbin  v.  Davis,  2  A.  K.  Marsh 

promise,   it   can   not   be   admitted   as  (Ky.)  17;  Dunklin  v.  Wilson,  64  Ala. 

res  adjudicata:    Wadhams  v.  Gay,  73  162. 

111.  415.     And  such  decree  would  only  75  Peak  v.  Ligon,  10  Yerg.  (Tenn.) 

bind  the  parties  consenting,  and  would  409. 

not   affect   the    rights    of    others   not  76  Taylor    v.    Boyd,     3     Hammond 

made    parties    to    the    suit,    but    who  (Ohio),  353;  Lambert  v.  Livingston, 

should  have  been:  Dibrell  v.  Carlisle,  131  111.  161. 

51  Miss.  785.  77  Pishback    v.    Weaver,    34    Ark. 

70  Land  v.  Keirn,  52  Miss.  341;  569;  PoweU  v.  Sogers,  105  111.  318. 
Eastman  v.  Porter,  14  Wis.  39 ;  Fish  78  Meredith  v.  Little,  6  Lea 
V.  Lightner,  44  Mo.  268.  (Tenn.),  517. 

71  Petersine  v.  Thomas,  28  Ohio  79  Maunday  v.  Vail,  34  N.  J.  L. 
St.   596;    Bates   v.    Spooner,   45    Ind.  418. 


480  ABSTRACTS   OF    TITLE.  [§  462 

to  decrees  which  have  been  rendered  upon  a  full  hearing  of  the 
case  and  with  all  the  parties  properly  before  the  court.  Where, 
however,  there  has  been  no  personal  service  upon  the  defendants, 
and  such  persons  are  before  the  court  only  constructively  by  a  sub- 
stituted service,  somewhat  different  rules  prevail.  The  law  will 
not  hastily  preclude  a  person's  rights  when  he  has  had  no  oppor- 
tunity to  be  heard ;  hence,  a  decree  entered  in  such  a  case  does  not 
become  final  and  conclusive  until  some  time  has  elapsed  during 
which  the  defendants  may  come  forward  and  urge  any  matter  they 
may  have  in  extenuation  or  defense.  The  time  allowed  for  this 
purpose  as  well  as  the  method  by  which  such  defendants  are  let 
ill,  are  matters  of  local  statutory  regulation,  but  the  principle  is 
of  general  observance,  that  all  persons  acquiring  rights  under  such 
decree,  before  it  becomes  final  and  conclusive,  are  equally  affected 
with  notice  of  its  conditional  character;  and  all  interests  so  ac- 
quired, whether  for  a  valuable  consideration  or  otherwise,  are 
entirely  dependent  upon  the  confirmation  of  the  decree,  which,  if 
vacated,  renders  all  proceedings  under  it  a  mere  nullity,  and  of  this 
all  persons  dealing  with  the  land  must  take  notice.^'' 

In  this  connection  the  attention  of  the  examiner  is  directed  to 
the  antecedent  proceedings  and  the  character  of  the  process  by 
which  the  defendant  is  brought  within  the  jurisdiction  of  the 
court.  Where  a  decree  is  based  on  a  constructive  service  every- 
thing essential  to  jurisdiction  must  appear.  The  defendant  must 
be  properly  named  or  identified.  In  other  words,  he  must  have 
notice,  and  if  the  fact  of  no  notice  affirmatively  appears  upon  the 
face  of  the  proceedings  the  judgment  is  void  and  open  to  collateral 

attack.    Thus,  a  notice  to Smith,  without  other  description  or 

identification  will  not  suffice  to  bring  John  Smith  into  court,  nor 
will  a  judgment  rendered  against  him  have  any  binding  effect.*^ 

§  463.  Lien    of    Decrees.     Decrees,    equally    with    judgments, 

create  liens  upon  the  lands  of  the  losing  party.  This  follows  as 
an  incident  where  there  is  a  money  decree  in  personam,^^  while, 
by  statute,  where  a  decree  is  pronounced  requiring  a  party  to  per- 
form some  act  other  than  the  payment  of  money,  it  may  be  made  a 
lien  upon  the  property  of  such  party  until  he  shall  perform  the 

80  Southern  Bank  v.  Humphreys,  47  No  personal  decree  can  be  rendered 
111.  227.  in  equity  against  defendants  not  per- 

81  Clark  v.  Hillis,  134  Ind.  421;  sonally  before  the  court;  as  to  such 
Thompson  v.  McCorkle,  136  Ind.  484.  defendants  the  bill  must  be  dismissed 

82  Karnes  v.  Harper,  48  111.  527;  without  prejudice;  Virden  v.  Needles, 
Yackle    v.    Wightman,    103    111.    169.  98  111.  366. 


§  464]  JUDGMENTS   AND   DECREES,  481 

acts  mentioned  in  the  decree.^^  In  the  first  instance  the  lien  has 
the  same  force  and  effect,  and  is  subject  to  the  same  limitations 
and  restrictions  as  judgments  at  law.** 

An  interesting  and  by  no  means  unusual  question  is  presented 
where  the  decree  is  entered  in  an  action  for  divorce  and  provides 
for  th6  payment  of  alimony.  Does  such  a  decree,  per  se,  create  a 
lien  on  the  lands  of  the  defendant  ?  Unfortunately,  this  question  is 
so  affected  by  local  statutes,  with  their  widely  varying  construc- 
tions, that  no  general  rule  can  be  formulated.  Recourse,  therefore, 
must  necessarily  be  had  to  local  usages  whenever  the  question  may 
arise. 

it  may  be  said,  however,  that  the  general  trend  of  the  decisions 
is,  that  a  decree  may  be  so  drawn  as  to  create  a  lien  on  the  lands  ot 
a  husband,*^  and  this  will  frequently  be  the  case  where  the  alimony 
is  a  lump  sum.*^  In  a  few  States  the  statute  provides  that  decrees 
for  alimony  shall  be  liens  on  the  judgment  debtor's  lands  in  the 
same  manner  as  other  judgments  but  usually  this  is  a  matter  which 
seems  to  be  left  to  the  discretion  of  the  court  granting  the  decree 
and  in  some  of  the  decisions  it  has  been  held  that  a  decree  is  not 
a  lieu  unless  the  record  affirmatively  shows  that  the  court  intended 
it  to  have  that  effect.*' 

In  all  cases  of  this  kind  the  decree  should  be  carefully  examined 
and  its  material  parts  abstracted  in  such  a  manner  as  to  fully 
apprise  counsel  of  its  legal  effect. 

§  464.  Formal  Requisites  of  Decrees.  Unlike  judgments  in  per- 
sonam, which  are  ordinarily  shown  only  by  a  brief  reference,  de- 
crees and  judgments  in  rem,  or  which  aft'ect  or  implicate  title,  are 
copied  almost  verbatim,  or  at  least  set  forth  with  little  condensa- 
tion. The  formal  parts  of  decrees  are,  the  caption  and  title  of 
the  cause;  the  recitals j  and  the  ordering  or  mandatory  clause. 
A  fourth  part,  called  the  declaratory  clause,  is  sometimes  added.** 
The  strictly  formal  parts  which  relate  to  the  caption,  etc.,  may  in 

83Kirby  v.  Kunals,  140  111.  289.  Babowski  v.   Babowski,   242   III.   524, 

84  Karnes   v.   Harper,   48   111.   527;       90  N.  E.  361. 

Eames    v.    Germania    Turnverein,    74  87  Scott  v.  Scott,  80  Kan,  498,  103 

111.  56.  Pac.  1005,  25  L.  E.  A.   (N.  S.)    132. 

85  Conrad  v.  Everich,  50  Ohio  St.  88  When  this  is  used  it  immedi- 
476,  35  N.  E.  58 ;  Goff  v.  Goff,  60  W.  ately  precedes  the  ordering  part, 
Va.  9,  53  S.  E.  769.  and  consists  of  a  declaration  of  the 

86  See,  Sesterhan  v.  Sesterhan,  60  rights  of  the  parties.  It  is  not  nec- 
lowa  301,  14  N.  W.  333;  Blanken-  essary,  however,  and  its  omission  will 
ship    V.    Blankenship,    19    Kan.    159;  not  invalidate  the  decree. 

Warvelle  Abstracts — 31 


482  ABSTRACTS   OP    TITLE,  [§  464 

some  eases  be  abbreviated,  particularly  when  the  decree  is  shown 
in  regular  order  as  a  part  of  the  sj'uopsis  of  the  proceedings  of  the 
court  which  pronounced  it,  but  when  the  abstract  is  made  from  a 
certified  copy  recorded  with  the  recorder  of  deeds,  it  is  advisable 
to  show  these  parts  also.  The  caption  shows  the  court;  term,  day, 
etc.,  on  which  the  decree  was  rendered ;  the  name  of  the  prcsitling 
judge  or  chancellor;  and  the  title  of  the  cause.  The  recitals  are 
now  very  meager  and  refer  briefly  and  generally  to  the  hearing, 
pleadings  and  proofs,  and  to  the  fact  of  their  having  been  duly 
considered  by  the  court.  Formerly  it  was  customary  to  set  out  at 
great  length  the  pleadings,  evidence,  etc.,  but  this  practice,  by 
reason  of  its  expense  and  inconvenience,  has  been  discontinued, 
and  the  inducement  of  the  recitals  reduced  to  a  bare  mention,^^  al- 
though in  some  States  the  evidence  still  is,  or  may  be,  preserved 
in  some  instances  in  this  manner.^*'  The  recitals  being  brief,  should 
be  shown  in  f  ull.^^  The  ordering  or  mandatory  clause  is  the  vital 
part  of  the  decree,  and  must  always,  with  the  exception  of  the  part 
referring  to  the  costs,  be  copied  verbatim.  This  part  contains  the 
specific  directions  of  the  court  with  reference  to  the  subject-matter 
before  it,  and  provides  for  the  final  disposition  of  the  rights  of  the 
litigants.  All  decrees  must  be  founded  on,  and  in  conformity  with, 
the  allegations  and  proofs;  and  can  not  be  based  upon  a  fact  not 
put  in  issue  by  the  pleadings.^^  ^Vhen  not  supported  by  the  plead- 
ings they  are  as  fatally  defective  as  though  not  sustained  by  the 
verdict  or  findings.^^ 

"Where  a  decree  directly  affects  land,  as  in  case  of  foreclosure  or 
other  action  in  rem,  it  is  of  vital  importance  that  the  description 
be  accurate  and  certain.  The  rules  of  conveyancing,  which  permit 
reference  to  extrinsic  facts  to  aid  the  intention  of  the  parties,  have 
no  application  to  descriptions  found  in  judicial  decrees,  or  deeds  of 
conveyance  founded  upon  them,  nor  can  the  assistance  of  equity  be 

89  Dousman  v.  Hooe,  3  Wis.  466.  reason    the    recitals    should    be    fully 

90Cooley  v.   Scarlett,   38   111.   316;  stated.    See  Turner  v.  Jenkins,  79  111. 

Walker  v.  Gary,  53  111.  470.  228;   Rivard  v.  Gardner,  39  lU.  125; 

91  Though   formerly  a   stricter  rule  Prettj-man   v.   Barnard,   37    111.    105; 

prevailed,      every      reasonable      pre-  Haworth  v.  Huling,  87  111.  23 ;  Belden 

sumption    is    now    indulged    in    favor  v.   ^Meeker,   2  Lans.    (N.   Y.)    470. 

of  the  jurisdiction  of  a  court  of  gen-  92  1    Barb.   Ch.    Prac.    *    339 ;    Car- 

eral  jurisdiction,  and  its  findings  in  neal  v.  Banks,  10  Wheat.  181;  Maun- 

decrees  are   held   to   be   prima  facie  day  v.  Vail,  34  N.  J.  L.  418. 

evidence  of  the  existence  of  jurisdic-  93  Bachman  v.    Sepulveda,   39    Cal. 

tional   facts,    while   the    recitals    fre-  688;  Marshman  v.  Conklin,  21  N.  J. 

quently    have    the    further    effect    to  Eq.  546;  Parsley  v.  Nicholson,  65  N. 

cure  defects  of  service,  etc.     For  this  C.  207. 


§  465]  JUDGMENTS   AND   DECREES.  483 

invoked  to  reform  such  descriptions.^  Hence,  if  the  decree  and  re- 
sulting deed  are  so  defective  that  it  can  not  be  ascertained  by  in- 
spection, or  from  data  which  they  furnish,  what  property  was  in 
fact  sold,  or,  if  in  order  to  ascertain  the  intention  of  the  officer  sell- 
ing it  becomes  necessary  to  institute  an  extraneous  inquiry,  the 
proceeding  will  be  void  for  uncertainty.^* 

§465.  Abstract  of  Decrees.  From  what  has  been  said  it  will 
be  perceived  that  an  abstract  of  a  decree,  unless  it  preserves  the  evi- 
dence, can  consist  of  little  else  than  a  copy  of  such  decree.  The 
recitals  may  permit  of  some  condensation,  and  the  mandatoiy  parts 
that  refer  to  the  costs  are  also  susceptible  of  the  same  treatment. 
The  verbiage  of  the  caption  may  also  be  condensed  and  parts  thereof 
omitted,  thus: 

"1     Circuit  Court  Cook  County. 
Alexander  Steivart  June  Term,  1883. 

vs.  J.     In  Chancery. 

Decree  entered  June  24,  1883. 
Chancery  record  45,  page  410. 


Charles  Dalton. 


Recites,  that  this  cause  having  come  on  to  he  heard  upon  the 
pleadings  herein  and  the  proofs  taken  in  said  cause,  and  having 
been  argued  hy  counsel,  and  the  court  having  dtdy  considered  the 
same,  and  being  fidly  advised  in  the  premises;  ®^ 

Doth  order,  adjudge  and  decree,  that  the  said  deed  of  convey- 
ance from  William  Jones  and  wife  to  the  defendant,  Charles  Dalton, 
bearing  date  January  4,  1882,  of  the  lands  described  as  follows, 
to  u'it:  [set  out  description]  and  recorded  in  the  recorder's  office 
of  Cook  County,  III.,  as  Doc.  129,242,  be,  and  the  same  is  hereby 
set  aside  and  declared  null  and  void,  as  against  the  complainant, 
his  heirs  and  assigns,  as  a  cloud  upon  the  title  of  the  complainant; 
and  that  the  defendant,  Charles  Dalton,  do  deliver  up  the  said  deed 
to  be  canceled  by  the  clerk  of  this  court.^'' 

94  Lewis  v.  Owen,  64  Ind.  446.  if  uncontradicted :     Balden  v.  Meeker, 

96  Evans    v.    Ashley,    8    Me.    177;  2  Lans.  (N.  Y.)  470. 

Bowen  v.  Wickersham,  124  Ind.  404.  97  Equity  will  generally  compel  an 

96  Kecitals   in  a  decree  of   a  court  instrument  to  be  delivered  up  for  can- 

of   inferior   jurisdiction   of  the   facts  collation,  where  it  has  been  declared 

necessary     to     give     jurisdiction    are  inoperative,  and  may  possibly  do  harm 

prima   facie   evidence   of   such    facts,  if  allowed   to   remain  in  defendant's 

subject  to  be  contradicted,  but  suffi-  hands:    Keemle  v.   Conrad,   12   Phila. 

cient  per  se  to  uphold  the  proceeding  (Pa.)  524.    A  decree  canceling  a  deed 


484  ABSTRACTS   OP   TITLE.  [§  465 

Further  ordered,  that  defendant  pay  costs  of  this  suit,  to  he 
taxed,  and  that  execution  issue  therefor.^^ 

It  will  sometimes  be  desirable  to  show  the  findings  of  the  court,  if 
any  were  made,  particularly  where  there  has  been  no  referoiice  to 
a  master  or  commissioner.®®  When  such  is  the  case  they  sliould  be 
inserted  before  the  ordering  or  mandator}'  clause.  This  will  require 
some  slight  changes  in  the  phrasing  as  above  set  forth.    Thus : 

•  •  *  and  the  court  having  duly  considered  the  same,  and 
being  fully  advised  in  the  premises, 

Doth  find,  that  [here  set  out  the  findings] 

Wherefore,  it  is  ordered,  adjudged  and  decreed  that,  etc. 

§  466.  Errors  and  Defects.  Errors  and  defects  in  judgments  or 
decrees  require,  when  apparent,  appropriate  mention.  But  the 
defects  that  are  noticeable  are  mainly  confined  to  matters  of  prac- 
tice, form,  etc.,  and  vital  defects,  from  their  very  nature,  are  fre- 
quently undiseernible.  Thus,  a  judgment  against  an  individual  as 
a  defendant,  by  a  name  which  is  not  his  in  contemplation  of  law, 
can  not  ordinarily  be  enforced  against  him,^  and  certainly  is  not 
constructive  notice  of  a  lien  upon  his  land.^  It  has  in  some  in- 
stances been  held,  that  a  judgment  in  an  action  in  which  the  defend- 
ant is  named  in  all  the  proceedings  therein  by  a  different  name 
from  that  of  a  particular  existing  individual,  Avill  be  of  no  avail 
against  the  latter,  even  if  entered  up  against  him  by  his  real 
name,  although  process  was  in  fact  served  upon  him,  when  the 
name  of  the  defendant  in  such  process  was  not  his ;  ^  because,  unless 
he  actually  appeared  in  the  action,  no  jurisdiction  over  him  was 
obtained  therein  by  the  service  of  such  process.*  But  the  weight 
of  authority'  would  seem  to  indicate  that  if  the  process  is  served 

may  direct  the  clerk  to  enter  the  fact  is  not  constructive  notice  that  it  is  a 

on  the  margin  of  the  record  of  such  lien  on  land  owned  by   Mary   Smith, 

canceled    deed:    Jones    v.    Porter,    59  notwithstanding  that  she  is  the  wife 

^liss.  628.  of  J.  B.  Smith;  Bankers,  etc.  Co.  v. 

98  This    is    equivalent    to    a    money  Blair,  99  Va.  606. 

judgment  and  creates  a  statutory  lien  3  Bates  v.  State  Bank,  7  Ark.  .394. 

on  the  defendant's  lands.  In   this  case   service  was  returned  as 

99  See    §  513   post,   for  a   precedent  had   upon  Asher  B.  Bates  and   .iudg- 
where  there  has  been  a  reference.  ment  was  rendered  against  Ashley  B. 

1  Farnham    v.    Hildreth,    32    Barb.       Bates. 

277 ;   Thomas  v.  Desney,  57  Iowa  58.  4  Moulton  v.   De   Macarty,   6   Rob. 

2  Thomas  v.   Desney,   57   Iowa  58;        (N.  Y.)  470;  Ford  v.  Doyle,  37  Cal. 
Grundies  v.  Reid,  107  HI.  304.    Thus,       346. 

a  judgment  against  Mrs.  J.  B.  Smith, 


§  467]  JUDGMENTS   AND   DECREES.  485 

on  the  party  intended  to  be  served,  though  by  a  wrong  name,  and 
he  fails  to  appear  and  plead  the  misnomer  in  abatement  and  suffers 
judgment  to  be  obtained  against  him,  he  is  concluded,  and  in  all 
future  litigation  may  be  connected  with  the  suit  or  judgment  by 
proper  averments.* 

In  compiling  an  abstract,  however,  the  two  matters  just  noted 
would  not  be  treated  alike.  In  the  former  case,  the  name  of  the 
judgment  debtor  not  being  the  same  as  the  party  whose  title  is 
under  consideration,  the  judgment  might  with  safety  and  propriety 
be  disregarded ;  as  where  the  name  of  the  land  owner  is  * '  Freeman ' ' 
Jones,  and  that  of  the  judgment  debtor  "Herman"  Jones.®  But 
in  the  latter,  though  the  judgment  debtor  was  sued  by  a  wrong 
name,  yet  inasmuch  as  judgment  was  entered  against  him  by  his 
true  name,  such  judgment  must  substantially  appear,  together  with 
so  much  of  the  proceedings,  including  the  process  and  return,  as 
will  show  the  repugnancy  or  invaliditj^  and  the  opinion  of  title 
should  specifically  pass  upon  the  facts  thus  exhibited. 

§  467.  Continued — Middle  Names.  A  more  perplexing  question 
arises  in  case  of  correct  Christian  and  surnames,  but  wrong  middle 
names  or  initials.  The  authorities  are  in  substantial  agreement 
that  the  law  requires  and  recognizes  but  one  Christian  name,  and 
that  the  omission  or  insertion  of  middle  names  or  initials  is  im- 
material,"'  yet  in  many  instances  the  middle  name  is  the  only  clue 
by  which  judgment  debtors  can  be  identified.  In  populous  locali- 
ties it  is  not  always  expedient  to  show  all  the  judgments  appear- 
ing against  a  particular  name.  Say  the  person  whose  title  is  under 
consideration  is  named  John  R.  Smith,  and  the  record  discloses 
judgments  against  "John  Smith,"  and  John  Smith  with  middle 
initials  other  than  "R, "  now  what  course  must  be  pursued  in 
view  of  the  propositions  last  presented?     To  insure  absolute  cer- 

5  Sec  Blooinfield  E.  R.  Co.  v.  Bur-  plusagc.  In  some  States,  however, 
gess,  82  Ind.  83 ;  National  Bank  v.  the  courts  seem  to  have  abrogated  the 
Jaggers,  31  Md.  38;  Walsh  v.  Kirk-  old  rule,  that  the  middle  letter  or 
patrick,  30  Cal.  202;  Foshier  v.  Nar-  initial  is  no  part  of  a  person's  name, 
ver,  24  Oreg.  441.  holding  that  it  is  essential  to  identify 

6  Farnham  v.  Ilildrcth,  32  Barb.  and  that  if  a  judgment  creditor  per- 
277;  Thomas  v.  Desney,  57  Iowa  58;  mits  the  omission  from  his  record  of 
Kennedy  v.  Merriam,  70  111.  228.  the    initial    which    distinguishes    his 

7  Thompson  v.  Lee,  21  111.  242 ;  debtor  from  all  others  of  the  same 
Bleteh  v.  Johnson,  40  111.  116;  AUi-  name  he  mu^t  bear  the  loss  if  any 
son  V.  Thomas,  72  Cal.  562;  Choen  ensues.  See,  Hutchinson's  Appeal,  92 
V.  State,  52  Ind.  347,  in  this  case  it  Pa.  186;  Grouse  v.  Murphy,  140  Pa. 
is  said  the  middle  name  is  mere  sur-  335,  21  Atl.  358,  12  L.  E.  A.  58. 


486  ABSTRACTS   OF    TITLE.  [§  467 

tainty,  every  judfjment  that  comes  within  the  rule  must  be  shown, 
and  this  in  many  cases  would  be  impracticable,  for  to  exhaust  the 
possibilities  as  to  John  Smitli  mij];ht  require  hundreds  of  searches. 
In  the  absence  of  positive  instructions,  therefore,  wlien  questions 
of  doubt  arise,  the  examiner  usually  looks  only  for  judgments 
aprainst  the  particular  name  under  consideration,  and  in  his  cer- 
tificate expressly  states  that  no  search  has  been  made  for  the 
other  names.* 

While  this  practice  is  sometimes  condemned  it  is  yet  in  con- 
sonance with  the  general  tendency  of  the  courts  in  construing 
docket  entries  and  enforcing  judgments.  It  is  now  a  common 
statutory  requirement  that  the  judgment  docket  shall  set  forth 
the  name  at  length  of  each  judgment  debtor.  Hence,  if  the  true 
name  of  the  judgment  debtor  is  "John  R.  Smith"  but  judgment  is 
docketed  against  him  as  "John  Smith,"  while  the  judgment  might 
be  effective  as  between  the  parties  it  would  be  of  no  effect  as  against 
a  purchaser.^  In  the  cases  which  support  this  doctrine  it  is  held 
that  the  middle  name  or  initial  is  an  essential  part  of  the  name 
and  that  the  omission  of  such  middle  name  or  initial,  or  the  sub- 
stitution of  others  than  the  true  one,  is  a  misdescription  of  the 
person,  the  tendency  of  which  is  to  deceive  intending  purchasers. 
The  object  of  the  statute  is  that  the  docket  shall,  of  itself,  fur- 
nish reasonably  satisfactory  evidence  as  to  whether  a  judgment 
exists  against  the  person  shown  by  the  records  to  own  the  land 
which  prospective  purchasers  seek  to  acquire.  In  order  to  make 
the  judgment  lien  effective  as  constructive  notice  to  subsequent 
purchasers  the  true  name  should  be  shown  and  if  the  index  fails 
to  make  this  disclosure,  and  the  purchaser  has  no  actual  knowl- 
edge of  the  identity  of  the  judgment  debtor,  he  should  take  the 
land   freed   form  the  lien.^" 

A  further  difficulty  is  met  in  the  case  of  first,  or  Christian  names, 
which,  through  popular  usage,  are  corrupted  or  abbreviated.  Thus, 
the  search  may  be  for  judgments  against  Francis  Brown.  No 
judgments  appear  against  such  person  but  there  is  a  judgment 
against  Frank  Brown.    Should  this  be  shown  ?     It  would  seem  that 

8  This  matter  is  further  considered  10  Crouse  v.  Murphy,  140  Pa.  St. 
in  the  chapter  devoted  to  "Opinions  335.  The  docket  entry  of  a  judg- 
of  Title."  nient     against     Edward     Davis     was 

9  Terry  v.  Sisson,  125  Mass.  560;  held  not  to  constitute  constructive 
Dutton  V.  Simmons,  65  Me.  583 ;  notice  of  a  lien  on  the  land  of  either 
Hutchinson's  Appeal,  92  Pa.  St.  186;  E.  A.  Davis  or  Edward  A.  Davis. 
Ridgeway's  Appeal,  15  Pa.  St.  177;  See,  Davis  v.  Steeps,  87  Wis.  472; 
.Tolinson  v.  Hess,  126  Ind.  298,  25  N.  and  see,  Johnson  v.  Hess,  126  Ind. 
E.  445,  9  L.  R.  A.  471.  298. 


§  468]  JUDGMENTS   AND   DECREES.  487 

this  is  the  only  safe  course  to  pursue,  for,  as  the  court  says  in  one 
case,  "it  is  a  matter  of  common  knowledge  that  seldom  is  one  bear- 
ing a  Christian  name  of  Francis  known  by  any  other  name  than 
Frank."  In  like  manner,  when  looking  for  liens  against  Jacob 
the  searcher  must  know  that  the  world  knows  no  difference  between 
"Jacob"  and  "Jake,"  and  that  a  judgment  indexed  against  Jake 
may  be  a  lien  on  the  property  of  Jacob.^* 

§  468.  Continued — Initials — Idem  Sonans.  The  same  perplexity 
arises  where  only  initials  are  employed,  an  incorrect  yet  neverthe- 
less common  practice.  A  judgment  docketed  against  "A.  Jones" 
has  been  held  sufficient  notice  of  a  judgment  against  "Abel  Jones," 
where  the  defendant  uniformly  wrote  his  name  by  his  initials  and 
there  was  no  other  "A.  Jones"  in  the  county. ^^  ^  judgment 
docketed  against  J.  W.  Humphrey  was  held  to  be  a  lien  upon  the 
land  of  John  W.  Humprey,  and  sufficient  to  put  a  subsequent 
purchaser  on  notice.^^  Indeed,  the  volume  of  authority  now  sus- 
tains the  rule  that  correct  initials  are  sufficient  to  impart  notice 
and  put  a  reasonable  person  on  inquiry. i*  Such  being  the  case, 
it  would  seem  that  where  there  may  be  a  doubt  as  to  whether  a 
judgment  is  a  lien  the  only  safe  course  for  the  examiner  is  to  show 
the  doubtful  judgment  in  his  abstract  if  he  desires  to  relieve 
himself  from  liability.  Should  he  choose  to  resolve  the  doubt,  he 
does  so  at  his  peril. ^^ 

Again,  the  examiner,  and  counsel  as  well,  must  deal  with  the  dis- 
cordant doctrine  of  idem  sonans.  Thus,  a  judgment  against  John 
*  *  Bobb ' '  was  in  one  instance  permitted  to  operate  as  a  lien  on  land 
owned  by  John  ' '  Bubb, ' '  ^^  and  one  against  Henry  ' '  Hackman ' ' 
was  in  another  case  allowed  to  participate  against  the  property 
of  Henry  ' '  Heckman. "  ^'^    It  is  said  in  support  of  these  precedents 

11  Burns  v.  Eoss,  215  Pa.  293,  64  123.  The  names  "Welch"  and 
Atl.  526,  7  L.  E.  A.   (N.  S.)   415.  "Welsh"  are  idem  sonans.    Donohoe- 

12  Jones  Estate,  27  Pa.  St.  336;  Kelly  Banking  Co.  v.  South.  Pac.  Co., 
Hart  V.  Lindsey,  17  N.  H.  235.  138  Cal.  183 ;  so  are  the  names  Wat- 

13  Pinney  v.  Eussell,  52  Minn.  443,  kins  and  Wadkins,  because,  it  is  said, 
54  N.  W.  484.  in     casual     pronunciation     there     is 

14  Valentine  v.   Britton,   127   N.   C.  scarcely  any  difference  in  the  sounds. 

57,  37-  S.  E.  74;  Crouse  v.  Murphy,  Bennett  v.  State,  62  Ark.  516.  See 
140  Pa.  335,  21  Atl.  358,  12  L.  E.  A.       Lyon  v.  Kain,  36  111.  368,  where  Ed- 

58.  monds,   Emmeus,   and   Enmions,   were 
16  Dood    V.    Williams,    3    Mo.    App.       all  held  to  have  practically  the  same 

278.  sound  and  hence  to  be  within  the  rule. 

16  Meyer  v.  Fegaly,  39  Pa.  St.  429.       On  the  other  hand,  it  has  been  held, 

17  Bergman's    Appeal,    88    Pa.    St.       that    Hyde    and    Ilite,    do    not    come 


488  ABSTRACTS   OP   TITLE.  [§  4G8 

that  identity  of  sound  is  a  surer  designation  of  the  names  of  per- 
sons than  identity  of  ortliography,  and  tliat  in  aseertaining  identity 
of  sound  the  prevailing  usage  in  pronunciation  in  the  locality  will 
prevail.  It  is  also  contended  that  persons  searching  the  judgment 
docket  for  liens  ought  to  know  the  dill'erent  forms  in  which  the 
same  name  may  be  spelled,  and  to  make  their  searches  accordingly; 
unless  iiideed  where  a  spelling  is  so  entirely  unusual  that  persons 
can  not  be  expected  to  think  of  it.^* 

It  is,  however,  the  duty  of  a  judgment  creditor  to  see  that  his 
judgment  is  properly  entered,  and  in  such  a  manner  as  to  furnish 
to  the  eye  of  purchasers  and  subsequent  incumbrancers,  that  record 
notice  which  the  law  contemplates,^^  therefore,  while  slight  varia- 
tions not  materially  changing  the  sound  may  be  permitted  to 
stand  under  the  rule  of  idem  sonans,  total  departures  in  initial 
letters,  misleading  the  searcher  and  failing  to  furnish  him  with 
proper  clues,  can  not  be  allowed.  As  where  the  judgment  debtor 
is  named  ' '  Voest, ' '  but  the  j  udgment  is  docketed  ' '  J  oest, ' '  not- 
withstanding that  the  foreign  pronunciation  of  the  name  is  the 
same  using  either  initial,  yet  the  eye  is'  misled,  and  the  law  does 
not  impose  upon  any  one  who  searches,  the  duty  of  inquiring 
whether  some  other  letters  may  not  spell  the  name  of  the  debtor 
in  another  language.^"  So,  too,  a  material  change  in  the  spelling, 
although  preserving  to  a  large  extent  the  original  sound  of  a 
name,  is  fatal  to  the  lien  as  against  one  having  no  notice.  Thus, 
the  names  "Hesser"  and  "Hesse"  are  so  dissimilar  that  one 
searching  for  incumbrances  against  the  former  would  not  be 
charged  with  notice  of  a  judgment  against  the  latter,  nor  put  upon 
inquiry. 2^ 

But  while  it  is  undoubtedly  true,  that  the  law  of  notice  by 
record  is  addressed  to  the  eye  and  not  to  the  ear,  and  that  record 
notice  is  principally  a  matter  of  sight  and  not  of  sound,  yet,  it  is 
held,  it  is  above  all  a  matter  for  the  consideration  of  the  mind,  and 
if  the  record  of  a  name  spelled  in  one  way  should  directly  sug- 
gest to  the  ordinary  mind  that  it  is  also  commonly  spelled  another 
way,  the  searcher  should  be  charged  with  whatever  the  record 

within  the  rule,  State  v.  Williams,  C8  20  Heil's    Appeal,    40    Pa.    St.    453. 

Ark.  241.     And  that  purchasers  from  But   see   Kirtz   v.   Behrensmeyer,   125 

VV.  H.  Fumian  are  not  charged  with  111.   141. 

notice  of  incumbrances  by  W.  H.  Free-  21  ^tna    Ins.    Co.    v.    Hesser,     77 

man,  Howe  v.  Thayer,  49  Iowa  154.  Iowa,   381;    and    see   Bates    v.    Bauk, 

18  See  Meyer  v.  Fegaly,  39  Pa.  St.  7  Ark.  394;  Anthony  v.  Taylor,  G8 
429.  Tex.  403. 

19  Hutchinson's  Appeal,  92  Pa.  St. 
186. 


§  470]  JUDGMENTS   AND   DECREES.  489 

may  show  in  some  other  spelling,  particularly  under  the  same 
initial  letter.  Hence,  a  judj^ment  ao^ainst  "Seibert"  was  held  to 
be  notice  to  purchasers  of  property  owned  by  **Sibert."  ^^  It  will 
be  seen,  therefore,  that  the  subject  is  one  of  doubt  and  uncertainty, 
and  because  of  this  an  additional  burden  of  care  and  diligence  is 
cast  upon  both  examiner  and  counsel. 

§  469.  Operation  and  Effect  of  Probate  Decrees.    A  decree  of  a 

probate  court  acting  within  the  sphere  of  its  jurisdiction,  is  con- 
clusive upon  all  those  to  whom  the  right  of  appeal  is  given,** 
wlien  such  right  is  unexercised,  and  as  to  all  matters  which  appear 
from  the  record  to  have  been  adjudicated  upon;  ^  and  all  such  de- 
crees, where  the  court  has  jurisdiction  of  the  subject-matter,  will  be 
presumed  to  have  been  made  upon  proper  notice  and  formal  pro- 
pcedings,  even  though  such  proceedings  do  not  appear  of  record.''* 
As  a  general  rule,  the  decree  of  a  probate  court  need  not  recite 
the  acts  or  facts  upon  which  the  jurisdiction  of  the  court  de- 
pended.^^ 

Orders  of  .sale  made  by  probate  courts  are  a  class  of  decrees  to 
which  the  attention  of  the  examiner  is  particularly  directed. 
These  orders  are  essential  parts  of  the  title  and  call  for  severe 
scrutiny.  It  has  been  held  that  an  order  of  court  for  the  sale  of 
land  must  in  itself  be  sufficient  without  reference  to  extraneous 
matters,^''  and  where  the  description  is  insufficient  the  sale  will 
be  invalid.^® 

§  470.  Foreign  Judgments  and  Decrees.  The  courts  of  a  coun- 
try have  no  extraterritorial  jurisdiction,  hence,  they  can  not,  by 
judgment  or  decree,  affect  title  to  land  situated  in  a  foreign  coun- 
try. It  is  true,  that  courts  of  equity  may,  and  do,  entertain  bills 
for  tlie  specific  performance  of  contracts  respecting  lands  situate 
in  a  foreign  country,  if  the  parties  are  resident  within  the  ter- 
ritorial jurisdiction  of  the  court,  but,  in  such  cases,  the  court  can 

22  Green  v.  Myers,  98  Mo.  App.  438.  27  A  decree  need  not  set  out  the  evi- 

23  Lawrence  v.  Englesby,  24  Vt.  dence  on  which  it  is  founded  but 
42.  should  find  the  allegations  of  the  pe- 

24  Rix  V.  Smith,  8  Vt.  356.  tition   to    be    proved,    and,    generally, 

25  Sparhawk  v.  Buell,  9  Vt.  41 ;  it  will  be  presumed  that  the  evidence 
Pollock  V.  Buie,  43  Miss.  140.  But  warranted  the  decree,  Bree  v.  Brec, 
see    Martin    v,    Williams,    42     Miss.  51  111.  367. 

210.  28  Crosby    v.    Dowd,    61    Cal.    557; 

26  Holmes     V.     Holmes,     27     Okla.       Hill  v.  Wall,  66  Cal.  130. 
140,   111    Pac.   220,   30   L.   R   A.    (N. 

S.)    920. 


490  ABSTRACTS   OF   TITLE,  [§  470 

not  bind  the  land  itself  by  any  decree  it  may  make;  it  can  only 
bind  the  conscience  of  the  party  in  regard  to  the  land,  and  enforce 
him,  by  process  aprainst  his  person,  to  perform  his  ap:reemcnt. 

A  judgment,  enforceable  in  the  State  where  rendered,  must  be 
given  effect  in  another  State,  under  the  full  faith  and  credit  clause 
of  the  Federal  Constitution.  Execution,  however,  does  not  issue 
on  a  foreign  judgment.  For  this  purpose  a  suit  must  be  instituted 
in  the  domestic  court.^^  In  such  event,  if  the  court  which  rendered 
the  original  judgment  is  sliown  to  have  had  jurisdiction  over  the 
subject  matter  and  of  the  person  against  whom  the  judgment  was 
rendered,  such  judgment  is  generally  conclusive  as  to  the  merits  of 
the  controversy.'" 

29  Stanton  v.  Embry,  46  Conn.  65.       Forrest  v.  Fey,  218  111.  165,  75  N.  E. 
80  Peel   V.    January,   35    Ark.    331;       789. 


CHAPTER  XXVII. 


JUDICIAL  AND  EXECUTION  SALES. 


471. 

Defined    and    distinguished, 

§483. 

472. 

Execution   sales — Validity   ; 

and 

§484. 

effect. 

§485. 

473. 

Title  under  execution  sales. 

474. 

When  the  title  vests. 

§486. 

475. 

The  writ. 

§487. 

476. 

The  levy. 

§488. 

477. 

Notice  of  sale. 

§489. 

478. 

Proof   of   publication. 

§490. 

479. 

Execution  sales  as  affected 

by 

death. 

§491. 

480. 

Exemption. 

§492. 

481. 

Dower   rights. 

§493. 

482. 

Judicial     sales — Validity     i 

ind 

effect. 

§494. 

Title  under  judicial  sales. 

Rights  of  purchasers. 

Compelling  purchaser  to  accept 
title. 

Order  of  confirmation. 

Effect   of   confirmation. 

Certificate  of  sale. 

Assignment   of   certificate. 

Proof  of  title  under  judicial 
and  execution  sales. 

Continued — Presumptions. 

Probate  sales. 

Nature  and  requisites  of  pro- 
bate sales. 

Abstract  of  probate  sales. 


§  471.  Judicial  and  Execution  Sales — Defined  and  Distin- 
guished. No  inconsiderable  portion  of  the  real  property  of  the 
country  changes  hands  every  year  through  the  media  of  execution 
and  judicial  sales,  meaning  by  such  terms,  all  sales  and  transfers 
of  property  made  in  pursuance  of  the  orders,  judgments  or  decrees 
of  courts,  or  sales  made  to  obtain  satisfaction  of  such  orders,  judg- 
ments or  decrees.  The  term  "judicial  sale"  is  properly  applied 
only  to  sales  made  in  conformity  to  an  order  or  decree  directing 
same,  and  requiring  a  subsequent  confirmation  or  approval  by  the 
court.^  "Execution  sales,"  though  based  upon  a  judgment,  are 
made  under  the  statute,  for  the  recovery  of  a  specific  sum  of  money 
in  satisfaction  of  the  judgment.  "The  chief  differences  between 
execution  and  judicial  sales,"  says  Freeman,  "are  these:  the  for- 
mer are  based  on  a  general  judgment  for  so  much  money,  the  lat- 
ter on  an  order  to  sell  specific  property ;  the  former  are  conducted 
by  an  officer  of  the  law  in  pursuance  of  the  directions  of  a  statute ; 


1  Mr.  Freeman  classes  judicial  sales       proceedings;  and   (3)   all  other  cases 


as  :  (1)  those  made  in  chancery;  (2) 
those  made  by  executors,  administra- 
tors and  guardians,  when  acting  by 
virtue  of  authority  derived  from 
orders   of    sale    obtained    in    judicial 


where  property  is  sold  under  an  order 
or  decree  of  court  designating  such 
property,  and  authorizing  its  sale: 
Freeman  Void.  Jud.  Sales,  15. 


491 


492  ABSTRACTS   OP   TITLE.  [§  471 

the  latter  aio  made  by  the  agent  of  a  court  in  pursuance  of  the 
directions  of  the  court;  in  the  former  tlie  sheriff  is  the  vendor,  in 
the  latter,  the  court ;  in  the  former  the  sale  is  usually  complete  when 
the  property  is  struck  off  to  the  highest  bidder;  in  the  latter  it 
must  be  reported  to  and  approved  by  the  court. ' '  * 

Sales  made  under  an  execution  must  conform,  in  all  respects, 
with  the  rules  which  the  law  lays  down  for  the  protection  of  the 
debtor.  If  not  so  made,  they  may  be  held  irregular  and  void.  But 
sales  made  under  the  decree  of  a  court  are,  to  a  considerable  ex- 
tent, under  the  discretionary  control  of  the  court,  which  often 
sets  them  aside,  although  no  error  or  irregularity  has  been  com- 
mitted, merely  for  the  sake  of  an  advance  in  the  price;  or  which 
may,  if  satisfied  that  no  injustice  has  been  done,  disregard  irregu- 
larities in  the  conduct  of  the  sale,  and  confirm  the  action  of  the 
master  or  other  officer  making  same.^  An  erroneous  or  voidable 
judgment  or  decree  stands  good  until  reversed;  and  a  stranger 
who  purchases  property  sold  under  such  judgment  or  decree  will 
generally  be  protected  in  his  purchase.* 

§  472.  Execution  Sales — Validity  and  Effect.  It  is  a  familiar 
principle  that  statutory  proceedings  to  divest  title  to  land  must 
be  strictly  pursued ;  and  that  a  substantial  departure  from  the  re- 
quirements of  the  statute  renders  the  proceedings  void.^  As  a  rule, 
the  sheriff  is  presumed  to  have  done  his  duty  in  making  a  sale, 
and  to  have  complied  with  all  the  requirements  of  law.^  But  this 
rule  does  not  apply  where  the  fact  that  the  sale  was  in  violation 
of  the  statute,  is  apparent  on  the  face  of  the  record  through  which 
the  title  is  claimed,'''  although  the  validity  of  a  purchaser's  title 
will  not  be  affected  by  the  failure  of  the  officer  to  make  a  seizure 
in  the  mode,  or  by  the  steps,  prescribed  by  the  statute,  when  such 
failure  consists  of  mere  irregularities.^  His  power  to  sell  comes 
from  the  judgment  and  execution,  and  is  not  to  be  measured  by  his 
proceedings  under  the  writ.^   Greater  strictness  is  required  in  con- 

2  Freeman  on  Void  Jud.  Sales,  14.  636;    Surgi  v.    Colmer,   22   La.    Ann. 

SLasell  v.  Powell,  7  Coldw.  (Tenn.)  20. 

277.  6  Leonard  v.  Sparks,  117  Mo.  103; 

4  South  Fork  Canal  Co.  v.  Gordon,  Ilogue  v.  Corbit,  156  111.  540. 

2   Abb.    (U.   S.)    479;   McAusland  v.  V  Piel  v.  Brayer,  30  Ind.  332. 

Pundt,  1  Neb.  211;   Storm  v.  Smith,  8  Wood  v.  Morehouse,  1  Lans.   (N. 

43   Miss.   497;    Garrett   v.   Lynch,    45  Y.)    405;    Stewart    v.    Pettigrew,    28 

Ala.  204;  Sinnett  v.  Cralle,  4  W.  Va.  Ark.  372;   Curd  v.  Lackland,  49   Mo. 

600.  451. 

6  Stillwell  V.  Swarthaut,  81   N.  Y.  9  Blood  v.  Light,  38  Cal.  649. 
109;    Havens  v.    Sherman,    42    Barb. 


§  472]  jrniciAL  and  execution  sales.  493 

ducting  the  sale,  the  details  of  which  are  regulated  by  express 
statutory  provisions  in  all  the  States,  and  non-compliance  in  this 
particular,  as  by  offering  land  in  gross  instead  of  in  parcels,  etc., 
will  be  sufficient  to  vitiate  the  proceeding,  and  the  sale  may  be  set 
aside,  even  as  against  a  stranger  who  has  bought  the  property  and 
paid  the  price. ^® 

One  who  buys  at  execution  sale  is  not  an  innocent  purchaser 
in  the  full  meaning  of  the  term,  but  takes  the  estate  subject  to  all 
equities  existing  against  it  at  the  time  of  the  purchase,  and  is 
chargeable  with  notice  of  all  defects  in  the  execution  debtor's  title, 
together  with  the  value  of  the  property  and  of  its  situation,  and 
of  the  legal  rules  bearing  upon  the  transaction.^^  Where,  however, 
a  purchaser  looks  to  the  record  and  finds  there  a  subsisting  judg- 
ment, and  buys  in  good  faith,  pays  the  price  and  receives  a  deed, 
he  takes  a  title  which  is  valid  until  the  sale  is  set  aside  and  the 
purchase  money  refunded.^^ 

The  doctrine  of  caveat  emptor  applies  to  every  purchaser  at 
a  sheriff's  sale.  He  buys  at  his  peril,  and  succeeds  only  to  the 
right  and  title  which  the  defendant  in  execution  had  at  the  time 
the  judgment  was  rendered  against  him.^^  The  selling  officer  has 
no  power  to  warrant  the  title  and  the  purchaser  is  presumed  to 
have  made  all  proper  examinations  and  to  know  what  he  is  ac- 
quiring.^* The  judgment  is,  of  course,  the  foundation  for  the 
title,  and  the  purchaser  must  see  to  it  that  at  the  time  of  the  sale 
such  judgment  is  subsisting  and  unsatisfied,  for,  however  innocent 
he  may  be,  he  can  acquire  no  title  when  the  power  which  confers 
the  same  has  ceased  to  exist.^^ 

Where  an  execution  sale  is  followed  by  deed  it  should  be  snown 
in  the  regular  course  of  title  as  one  of  the  muniments.  In  such 
case  the  abstract  of  the  transaction  commences  with  a  statement 
of  the  entry  of  judgment,  issuance  of  execution  and  return  of  the 
writ.     Where  the  matter  is  apparently  regular,  and  particularly 

lOVass    V.    Johnson,    41    Ind.    19;  Frost  v.  Bank,  70  N.  Y.  553;  Barron 

Browne  v.  Ferrea,  51  Cal.  552;  Mor-  v.   Mullin,   21   Minn.   374;   Holmes   v. 

ris   V.   Eobey,   73   111.   462.      Compare  Shaver,    78    111.    578;    McCartney    v. 

Eaton  V.  Eyan,  5  Neb.  47.  King,  25  Ala.  681. 

llEichardson  v.   Wicker,   74  N.   C.  14  Atwood  v.  Wright,  29  Ala.  346; 

278;    Allen    v.    McGaughey,    31    Ark.  Bassett  v.  Lockard,  60  111.  164;  Ilens- 

252 ;  Morris  v.  Eobey,  73  111.  432.  ley  v.  Baker,  10  Mo.   157. 

12  Owen  V.  Navasota,  44  Tex.  517;  16  Wood  v.  Calvin,  2  Hill  (N.  Y.) 
Wing  V.  Dodge,  80  111.  564.  566;    Jackson   v.   Anderson,   4   Wend. 

13  Miller  v.  Wilson,  32  Md.  297;  (N.  Y)  474;  King  v.  Goodwin,  16 
Walke    V.     Moody,    65    N.    C.    599;  Mass.  63. 


4!t4  ABSTRACTS   OP   TITLE.  [§472 

where  it  is  ancient  and  the  rights  of  present  owners  are  unques- 
tioned, only  a  brief  mention  is  necessary.    Thus: 

Thomas  Jones  1  In  the  Circuit  Court  of  Cook  County,  III. 

vs.  \Case  45,520. 

James  E.  Smith.         J  Assumpsit. 

Judgment  against  defendant  for  $3,500.00  and  costs  entered  Dec. 
17,  1895. 

Execution  No.  19,987,  issued,  dated  Jan.  3,  1896.  Execution 
returned  levied  Jan.  9,  1896,  upon  all  the  right,  title  and  interest 
of  defendant  in  and  to  the  northwest  quarter,  etc.  [here  set  out 
description  the  landj,  and  satisfied  hy  a  sale  of  said  land  on 
Jan.  29,  1896,  to  Henry  Jackson  for  $3,600.00. 

The  certificate  of  sale  and  sheriff's  deed  should  follow.*^ 

§  473.  Title  under  Execution  Sale.  A  purchaser  at  an  execu- 
tion sale  succeeds  to  all  the  rights  which  the  judgment  debtor 
had,^'  and  takes  the  same  title  possessed  by  him  with  all  its  im- 
perfections and  infirmities.^*  It  is  the  policy  of  the  law,  however, 
to  uphold  and  protect  such  titles,  and  though  the  deed  purports  to 
convey  only  "the  right,  title  and  interest"  which  the  judgment 
debtor  possessed  or  had  in  tlie  land  at  date  of  the  judgment,  yet  the 
purchaser  under  such  a  deed  will  take  the  entire  estate  as  against 
prior  unrecorded  deeds  or  equities  of  which  he  had  no  notice.** 
The  title  so  acquired  may  be  sold  and  conveyed,  even  pending  an 
appeal,****  and  the  reversal  of  the  judgment  for  error,  where  the 
court  had  jurisdiction  of  the  subject-matter  and  the  parties,***  will 
not  materially  aftVct  the  purx-haser's  rights,  for  it  is  a  settled  prin- 
ciple of  the  common  law,  coeval  with  its  existence,  that  the  de- 
fendant shall  have  restitution  of  the  purchase  money,  and  the 
purchaser  shall  hold  the  property  sold,  except  where  the  plain- 
is  For  a  precedent  see  §  488.  ject  to  be  set  aside,  on  motion  made 

17  Morgan  v.  Bouse,  53  Mo.  219;  in  proper  time  by  the  defendant, 
Williams  v.  Amory,  16  Mass.  186.  whose  land  has  been  sold;  but  no  one 

18  Hicks  V.  Skinner,  71  N.  C.  539;  except  the  defendant  in  the  execution 
Comeron  v.  Logan,  8  Iowa  434 ;  Bas-  can  question  the  sale  for  irregularity, 
sett  V  Lockard,  60  111.  164.  however  gross,  and  if  not  so  set  aside, 

19  Harpham  v.  Little,  59  111.  509.  the  sale  will  pass  the  defendant's  in- 

20  The  issue  of  an  execution  on  a  terest  in  the  land :  Shirk  v.  Gravel 
judgment,  pending  an  appeal,  is  ir-       Road  Co.,  110  111.  661. 

regular,  but  not  Toid,  and  a  sale  of  21  Feaster  v.  Fleming,  56  111.  457 ; 

land  under  such  an  execution  is  sub-       Hobson  v.  Ewan,  62  111.  146. 


§  475]  JUDICIAL   AND    EXECUTION   SALES.  495 

tiff  in  the  judgment  becomes  purchaser,  and  still  holds  the  title.''* 
In  this  latter  event  the  title  acquired  under  such  judgment  is  di- 
vested by  the  reversal.** 

§  474.  When  Title  Vests.  In  all  cases  where  a  redemption  is 
permitted,  the  legal  estate  of  the  judgment  debtor  is  not  divested 
by  the  sale  until  after  the  period  allowed  for  redemption,  nor  even 
then,  unless  the  sale  has  been  consummated  by  a  deed  from  the 
sheriff.  Until  the  execution  of  such  deed  the  title  of  the  purchaser 
is  inchoate,  for  by  the  simple  act  of  purchase  he  acquired  no  legal 
estate  in  the  land,  but  only  a  right  to  an  estate  which  may  be  per- 
fected by  conveyance.**  Prior  to  the  sheriff's  deed,  the  debtor  is 
entitled  to  the  possession  and  profits  of  the  land,  while  the  equity 
held  by  the  purchaser  is  a  lien  upon  the  land  for  the  amount  of 
his  bid  and  interest.** 

§  475.  The  Writ.  It  is  a  cardinal  rule  that  the  execution  must 
conform  substantially  to  the  judgment,  or  the  sale  will  be  void;  *® 
yet  it  is  not  customary  to  m.ore  than  allude  to  this  instrument  in 
the  abstract  of  an  execution  sale,  unless  special  instructions  are 
given  otherwise.  Its  date,  number  and  import  are  usually  noticed, 
and  in  case  of  a  venditioni  exponas  a  brief  allusion  to  the  lands 
specifically  described.  Nor  will  a  more  extended  notice,  in  most 
cases,  be  necessary,  as  the  purport  and  effect  of  the  writ  are  gen- 
erally recited  in  other  of  the  proceedings  under  it.  Where  an  exe- 
cution is  not  signed  by  the  officer  authorized  to  issue  it,*'  or  where 
there  is  an  insufficient  teste,  as  where  the  seal  of  the  court  is 
omitted,**  or  where  there  is  a  want  of  correspondence  with  the 
judgment,  such  defects  should  be  shown,  as  a  valid  execution  is 
one  of  the  integral  links  in  the  chain  of  title,  but  mere  clerical 

22  Fergus  v.  Woodworth,  44  111.  26  Crittenden  v.  Leitensdorfer,  35 
374;  Mansfield  v.  Hoagland,  46  111.  Mo.  239;  Hightower  v.  Handlin,  27 
359.  In  this  event  the  sale  is  usu-  Ark.  20;  Hastings  v.  Johnson,  1  Nev. 
ally  void  under  special  statutes:    see  612. 

Hutchens    v.    Doe,    3    Ind.    528;    but  27  Rawles  v.  Jackson,  104  Ga.  593; 

compare  Gossom  v.  Donaldson,  18  B.  Wooters  v.  Joseph,  137  111.  113. 

Mon.   (Ky.)  230.  28  This  has  been  held  a  fatal  defect 

23  Powell  V.  Eogers,  105  111.  318.  which   will   invalidate  the   deed:    Ins. 

24  Smith  v.  Colvin,  17  Barb.  157;  Co.  v.  Hallock,  6  Wall.  556;  Davis 
Evertson  v.  Sawyer,  2  Wend.  507;  v.  Ransom,  26  111.  100;  Weaver  v. 
Bowman  v.  The  People,  82  111.  246;  Peasley,  163  111.  251;  Gordon  v.  Bod- 
and  see  Rucker  v.  Decker,  49  111.  well,  59  Kan.  51;  but  see,  contra, 
377.  Corwith  v.  Bank,  18  Wis.  560. 

26  Vaughn  v.  Ely,  4  Barb.  159. 


496  ARSTRACTS   OF   TITLE.  [§  475 

variance  will  not  invalidate,'^  nor  afford  ground  for  collateral  im- 
peachment.'*' An  execution  issued  and  levied  in  the  name  of  de- 
ceased plaint ilTs,  or  aprainst  deceased  defendants,  will  he  void  in 
some  States,  but  may  be  effectual  in  others,  provided  certain  statu- 
tory provisions  are  complied  with.'^ 

§  476.  The  Levy.  A  levy  of  lands  is  made  by  an  indorsement 
thereof  upon  the  writ,  there  beinp:  no  such  thinpr  as  seizure  of 
the  property.  The  sheriff,  when  levying  on  real  estate,  does  not 
disturb  the  possession  of  the  debtor  nor  oven  his  right  of  pos- 
session, and  this  constitutes  the  chief  distinction  between  a  levy 
on  real  estate  and  on  personal  property. ^2  The  decisions  as  to 
what  constitutes  a  valid  levy  are  generally  harmonious  in  de- 
claring that  the  land  must  be  described  with  sutlficicnt  certainty 
to  enable  it  to  be  identified  without  other  evidence,'^  but  if  de- 
fective in  this  respect  it  will  be  cured  by  a  correct  deed.'*  Tn  an 
abstract  of  the  sale  it  is  regarded  as  a  minor  detail,  which  may 
be  briefly  noticed  in  the  return  of  the  execution,  but  the  certificate 
and  deed  supply/ in  better  shape  the  necessary  information  con- 
cerning it.  "And,"  observes  Mr.  Rorer,'^  "though  the  purchaser 
relies  on  the  judgment,  execution,  the  levy  and  the  deed,  .vet 
when  the  purchaser  at  sheriff's  sale  shows  an  authorized  execu- 
tion and  deed,  a  correct  levy  and  notice  is  presumed.  A  .judg- 
ment, execution  and  deed  from  the  sheriff  are  sufficient  to  support 
the  title  of  a  purchaser  without  proof  of  a  levy,  though  the  return 
be  incorrect,  or  there  be  no  return."'^ 

§  477.  Notice  of  Sale.  It  is  a  general  statutory  provision  that 
land  shall  not  be  sold  by  virtue  of  any  execution  except  at  public 
sale,  nor  unless  the  time  and  place  of  holding  such  sale  shall  have 

29Whcaton    v.     Sexton,    4    Wheat.  36  Korer   Jud.   and   Ex.    Sales,   292, 

503;   Jackson   v.   Spink,   59   111.   404;  citing  Brooks  v.  Rooney,  11  Ga.  423; 

Riddle  v.  Bush,  27  Tex.  675;  Wood-  Hopping   v.    Burnam,   2    Greene,    39; 

ley  V.  Gilliam,  67  N.  C.  237.  Evans  v.  Davis,  3  B.  Mon.,  344;  Mc- 

30  Butler  v.  Haynes,  3  N.  H.  21.  Entire    v.    Durham,    7    Ired.    L.    151; 

31  Hildreth  v.  Thompson,  16  Mass.  Jackson  v.  Young,  5  Cow.  269;  Phil- 
191;   Meek  v.  Bunker,   33   Iowa  169;  lips  v.  Coffee,  17  111.  154. 

Bowen  V.  Bonner,  45  Miss.  10.  36  Levy     on     attachment     is     gov- 

32  Dement  v.  Thompson,  80  Ky.  255.  erned   b.v   different   principles,   and   a 

33  Chadboume  v.  Mason,  48  Me.  return  or  certificate  filed  is  of  vital 
389;  Gault  v.  Woodbridge,  4  McLean,  importance  in  preserving  the  lien: 
329.  See   Lis   Pendens   and    Attachments. 

84  Hopping    v.    Burnam,    2    Greene 
(Ta.)  39. 


§  478]  JUDICIAL   AND   EXECUTION   SALES.  497 

been  previously  given  by  prescribed  methods.  These  methods  gen- 
erally consist  in  putting  up  written  or  printed  notices  of  sale  and 
by  advertisement  thereof  in  some  newspaper,  which  notices  must 
describe  the  parties,  property,  terms,  etc.,  and  this  applies  as  well 
to  judicial  as  to  execution  sales.'''  This  notice  it  is  well  to  briefly 
abstract,  showing  only  the  legal  requirements  in  a  connected 
narrative  form,  and  when  proof  of  publication  is  appended,  show 
this  as  well.  The  proof  of  publication  is  afforded  by  the  pub- 
lisher's affidavit  or  certificate  of  same.  The  statutes  requiring 
notice  of  sale  are  said  to  be  directory  merely,  and  failure  to  give 
such  notice  will  not  avoid  the  sale  so  as  to  defeat  the  title  of  an 
innocent  purchaser  not  himself  in  fault ;  '^  hence,  a  passing  allu- 
sion sufficient  to  show  its  purport,  seems  all  that  is  necessary  in 
regard  to  the  notice.'^  In  the  general  synopsis  of  sale  it  may  be 
mentioned  in  this  manner : 

Printed  copy  of  notice  of  sale,  gives  title  of  court  and  cause,  de- 
scribes the  said  premises,'^  and  fixes  on  Sept.  7,  1881,^^  at  11  o^ clock 
a.  m.,'^  at  the  east  door  of  the  Court  House,^  Chicago,  III.,  and  for 
cash,  as  the  time,  place  and  terms  of  said  sale. 

§  478.  Proof  of  Publication.  Appended  to  the  notice  of  sale 
will  usually  be  found  an  affidavit  or  certificate  by  the  publisher 
of  a  newspaper,  to  the  effect  that  the  notice  was  duly  published 

37  01cott  V.  Kobinson,  20  Barb.  148.  Stevens  v.  Bond,  44  Md.  506;  Collier 

38Freem.  Ex.  §  284.     With  regard  v.  Vason,   12  Ga.  440;   Allen  v.  Cole, 

to    probate    sales   a   more   strict    rule  9  N.  J.  Eq  286. 

seems   to   prevail   and   notice   is   held  41  The  date  of  sale  is  material  and 

essential:    Blodgett  v.   Hitt,   29   Wis.  destroys  the  validity  of  the  notice  if 

169 ;    Mountour   v.    Purdy,    11    Minn.  of  such  a  character  as  to  mislead  the 

384.  public:  Fenner  v.  Tucker,  6  E.  I.  551. 

39  Defective  notice  does  not  ren-  42  If  the  notice  does  not  name  the 
dcr  the  sale  void,  or  even  voidable  exact  hour  at  which  the  sale  is  to  be 
unless  the  purchaser  has  notice  of  held,  it  should  name  the  hours  be- 
the  irregularity.  Purchasers  in  good  tween  which  it  will  take  place,  which 
faith  can  not  be  affected  by  such  will  be  sufficient  if  the  hours  named 
non-compliance  with  the  statute:  Os-  belong  to  the  business  hours  of  the 
good  V.  Blackmore,  59  111.  261;  Watt  day:  Cox  v.  Halsted,  2  N.  J.  Eq.  311; 
V.  McGalliard,  67  111.  513.  Burr  v.  Borden,  61  111.  388.    A  failure 

40  A  minute  description  is  not  nee-  to  state  some  time  renders  the  notice 
essary  provided  what  is  given  is  cor-  insufficient:  Trustees  v.  Snell,  19  111. 
reet    and    sufficiently    identifies    the  156. 

property  to  enable  the  public  to  un-  43  The   designation    of   a   place    of 

derstand,  by  the  exercise  of  ordinary  sale  is  an  essential  requisite   of  the 

intelligence,     what    is    to    be     sold:  notice,    without    which    it    is    in    law 
Warvelle  Abstracts — 32 


498  ARSTRACTS   OP   TITLE.  [§  478 

according  to  hnv,  and  this  affidavit  or  certificate  it  is  ^vell  to  show 
iu  brief  terms.    Its  material  points  may  be  noted  as  follows : 

Appended  to  the  foregoing  is, 

Affidavit  ]      Subscribed  and  sworn  to,  June  1, 

by  1 1883. 

Mjira  Hradwell,  President  ^  Recites,  that  a  notice  '"of  tchich 
of  the  Chicago  Legal  I  the  annexed  printed  slip  is  a  true 
Neivs  Co.  I  copy,"  teas  duly  published  in  the  Chi- 

cago Legal  News,  a  weekly  newspaper  of  general  circulation,  printed 
and  published  in  Cook  County,  III.,  for  the  period  of  three  suc- 
cessive weeks;  **  that  the  date  of  the  first  publication  was  Jan.  6, 
1883;^  that  the  date  of  the  last  publication  ivas  Jan.  20,  1883.^ 

A  certificate  of  publication  under  the  statute  is  sufficient  if  it 
shows  a  substantial  compliance  therewith,  but  the  essential  requi- 
sites must  appear;  such  affidavit  or  certificate  may  properly  be 
likened  to  the  return  of  an  officer,  and  like  such  return  should  show 
all  jurisdictional  facts. 

A  defect  in  the  certificate  of  publication,  in  not  stating  the  first 
and  last  days  of  the  publication,  has  been  held  to  be  cured  by  a 
recital  in  the  decree  that  "it  appearing  to  the  court  that  notice 
according  to  law  was  given,"  etc.,  the  presumption  being  that  the 
court  received  other  evidence  than  the  certificate,  of  the  date  of  the 
publication.*"^  It  must  be  observed  further,  that  the  certificate  or 
affidavit  of  publication  can  only  be  made  by  the  publisher  or  his 
authorized  agent,*^  and  a  certificate  signed  "John  Wentworth,  pub- 
no  notice  whatever:  Bottineau  v.  Ins.  sues  before  sale,  although  twenty-one 
Co.,  31  Minn.  125;  Blodgett  v.  Hitt,  days  do  not  elapse  from  first  insertion 
29  Wis.  169.  to   day   of   .sale,   Pearson   v.   Bradley, 

44  The   number  of  times,  or  period       48  111.  250.     Where  this  fact  appears, 
of    time,    the    notice    Avas    published,       liowever,   counsel   should   notice   it   in 
and  the  date  of  the  first  and  last  is-      his    opinion,    if    the    statute    requires 
sues    containing    same,    are    indispen-       twenty  days'  notice, 
sable  to  its  validity:   Beygeh  v.  Chi-  47  Moore  v.  Neil,  39  111.  256.     The 

cago,  65  111.  189.  foregoing  example,  though  inserted  in 

46  It  may  be  well  to  observe  that  connection  with  execution  sales,  is 
the  date  of  publication  does  not  fall  that  also  employed  in  all  decretal  sales 
on  Sunday  as  this  would  invalidate  as  well,  either  in  chancery  or  in  pro- 
the  notice:  Smith  v.  Wilcox,  24  N.  Y.  bate,  and  must  be  shown  in  the  same 
353;  Scammon  v.  Chicago,  40  111.  146;  manner  in  expositions  of  such  sales. 
Shaw  V.  Williams,  87  Ind.  158.  48  This  matter  is  statutory;  usually 

46  It  would   seem   that  the  statute       the  proof  of  publication  must  be  made 
is  satisfied  if  there  are  three  differ-       by  the  ' '  printer  or  publisher. ' ' 
ent  insertions  in  as  many  weekly  is- 


§  480]  JUDICIAL    AND   EXECUTION   SALES,  499 

lisher,  by  Reed, ' '  has  been  held  insufficient.*^  In  this  instance  the 
certificate  did  not  purport  to  be  given  by  the  publisher,  but  by 
another  person  who  used  the  publisher's  name  but  failed  to  show 
his  own  authority.  Where  a  newspaper  is  published  by  a  firm  or 
by  a  corporation,  a  certificate  by  one  of  the  partners,  or  by  an 
officer  of  the  corporation,  when  such  certificate  shows  the  official 
connection  of  the  person  making  it  with  the  newspaper,  will  usually 
be  sufficient.^® 

§  479.  Execution  Sale  as  Affected  by  Death.  The  death  of  a 
plaintiff  after  judgment  and  before  execution  issued  is  of  compara- 
tively little  moment  in  respect  to  title,  as  his  personal  representa- 
tives may  sue  out  execution  in  the  name  of  such  deceased  plaintiff, 
or  in  their  official  capacity,  as  the  statute  may  direct.^^  If  the 
defendant  dies  after  judgment,  the  plaintiff  may  sue  out  execution 
in  the  mode  prescribed  by  statute,  or,  if  permissible,  proceed  by 
tlie  common  law  scire  facias.  But,  in  the  event  of  the  death  of 
either  party  prior  to  execution,  to  render  valid  a  sale  under  the 
judgment  it  should  be  revived  by  scire  facias,  or  an  execution  must 
be  sued  out  in  the  mode  prescribed  by  statute,  which  usually  pro- 
.ides  for  the  filing  or  recording,  in  the  court  in  which  the  judg- 
ment exists,  of  the  letters  testamentary  or  of  administration,  after 
which  execution  may  issue  and  proceedings  be  had  thereon,  in  the 
name  of  the  executor  or  administrator,^^ 

§  480.  Exemptions.  Though  all  the  real  estate  of  a  judgment 
debtor  may  be  primarily  liable  to  seizure  and  sale  on  execution,  a 
statutory  right  has  been  given  to  him  in  every  State,  to  relieve  a 

49  Fox  V.  Turtle,  55  111.  377.  52Scammon    v,    Swartout,    35    111, 

50  Fox  V,  Turtle,  55  111.  377.  It  326;  Brown  v,  Parker,  15  111,  307, 
would  seem  to  be  the  rule  in  some  In  this  case  a  sheriff's  deed  was  re- 
States,  that  when  the  affidavit  of  pub-  lied  on  for  title.  The  execution 
lication  is  defective,  an  amended  affi-  under  which  the  sale  was  made 
davit  may  be  filed  according  to  the  was  not  issued  until  several  years 
truth  of  the  case:  Bunce  v.  Keed,  after  the  death  of  the  judgment 
16  Barb.  347.  creditor,    without    first    reviving    the 

51  It  is  a  familiar  provision  of  the  judgment  in  favor  of  the  personal 
statute  that  liens  created  by  law  do  representative,  or  recording  in  court 
not  abate  by  reason  of  the  death  of  his  letters  of  administration,  and  was 
any  plaintiff  or  plaintiffs,  but  that  also  issued  in  the  name  of  the  de- 
same  shall  survive  in  favor  of  the  ceased  plaintiff,  and  not  in  the  name 
executor  or  administrator,  whose  duty  of  his  personal  representative.  Held, 
it  shall  be  to  have  the  judgment  en-  that  the  execution,  and  all  proceedings 
forced:    Durham    v.    Heaton,    28    111.  under  it,  were  absolutely  void. 

264. 


500  ARSTRACTS   OF   TITLE.  [§  480 

portion  of  same  from  this  hiinUMi,  l)ut  tlu'  exercise  of  this  ri^iit  is 
iar^'ely  clepeiulent  on  intention.  When,  therefore,  title  is  eiaimed, 
or  sought  to  be  addueed  through  the  medium  of  an  execution  sale, 
and  the  abstract  furnishes  no  information,  it  would  seem  that  an  in- 
quiry should  be  made  concerning  the  status  of  the  land  Avith  i-efer- 
enee  to  the  statutory  right  of  exemption.  The  debtor  is  not  always 
obliged  to  assert  his  right  at  the  time  of  the  levy,  neither  will  a 
subsequent  sale  impair  same,  and  the  question,  Avlien  such  a  state 
of  facts  may  exist  under  the  statute,  becomes  of  controlling  im- 
portance. A  sale  of  the  homestead  under  execution  being  inopera- 
tive, the  purchaser  thereat  takes  no  title.^^ 

§  481.  Dower  Rights.  It  must  always  be  borne  in  mind,  while 
making  searches  of  the  character  now  under  consideration,  that  a 
sale  made  in  pursuance  of  a  judgment  affects  only  the  title  of  the 
parties  to  the  suit.  To  the  great  majority  of  judgments  at  law  the 
wives  of  the  defendants  are  not  made  parties,  and  it  necessarily 
follows,  in  such  a  case,  that  an  execution  sale  of  the  husband's 
land  does  not  extinguish  the  wife's  right  of  dower.^*  Therefore, 
whenever  title  is  derived  through  a  sale  of  this  kind,  and  the 
records  fail  to  disclose  anything  respecting  the  domestic  condition 
of  the  judgment  debtor,  an  inquiry  is  raised  and  a  requisition  for 
further  information  should  be  made. 

§  482.  Judicial  Sales — Validity  and  Effect.  A  sale  of  land  un- 
der a  decree,  must  be  made  in  the  manner  and  on  the  terms  pre- 
scribed in  such  decree ;  ^^  and  a  confirmation  by  the  court  of  the 
report  of  the  officer,  can  not,  it  seems,  cure  the  invalidity  of  a 
sale  not  so  made.^^  But  a  sale  will  not  be  disturbed  unless  the 
party  suing  can  show  an  injury  resulting  to  him  therefrom,^''  as 
well  as  an  interest  in  the  subject-matter,^^  while  it  is  always  the 
jjolicy  of  the  law  to  uphold  judicial  sales,  and  to  protect  the  rights 

53  Conklin  v.  Foster,  57  111.   104.  whether    execution    or    judicial,    are 

64  Butler  v.  Fitzgerald,  43  Neb.  classed  by  Mr.  Freeman,  as  (1)  those 
192;  Dayton  v.  Corser,  51  Minn.  406;  which  are  void  because  the  court  had 
Fieklin  v.  Rixey,  89  Va.  832.  no   authority   to   enter   the   judgment 

65  Langsdale  v.  Mills,  32  Ind.  380;  or  order  of  sale;  (2)  tliose  which, 
Augustine  v.  Doud,  1  111.  App.  588.  though  based  on  a  valid  judgment  or 

66  Bethel  v.  Bethel,  6  Bush  (Ky.),  order  of  sale,  are  invalid  from  some 
65;  but  this  will  only  apply  to  gross  vice  in  the  subsequent  proceedings: 
departures;   mere  irregularity  is  gen-  Freeman  Void  Jud.  Sales,  15. 

erally  cured  by  confirmation:  William-  67  Matter   of   Gilmer,   21   La.    Ann. 

son   V.   Berrj',   8   How.   546;    Koehler       589. 

V.    Ball,    2    Kan.    160.      Void    sales,  58  Nixon   v.    Cobleigh,   52    111.   387. 


§  483]  JTJDICIAL   AND   EXECUTION    SALES.  501 

of  purchasers  under  them ;  ^^  and  although  the  judgment  or  decree 
may  be  reversed,  yet  all  rights  acquired  at  a  judicial  sale  while  the 
decree  or  judgment  was  in  force,  and  which  it  authorized,  will  be 
protected.  It  is  sufficient  for  the  buyer  to  know  that  the  court  had 
jurisdiction  and  exercised  it,  and  that  the  order  on  the  faith  of 
which  he  purchased  was  made,  and  authorized  the  sale,^"  for  where 
the  court  has  jurisdiction  of  the  parties,  and  of  the  subject-matter 
of  the  litigation,  no  matter  how  erroneously  it  may  thereafter  pro- 
ceed, within  the  bounds  of  its  jurisdiction,  its  decree  will  be  con- 
clusive until  reversed  or  annulled  in  some  direct  proceeding,^^  and 
the  title  to  property  acquired  at  a  sale  under  such  decree,  by  a 
stranger  to  the  record,  will  be  upheld,  although  the  decree  itself 
may  afterward  be  reversed  for  manifest  error.^^ 

On  the  other  hand  it  must  be  remembered  that  the  rule  of  caveat 
emptor  applies  to  all  judicial  sales, ^^  ^nd  one  who  purchases  thereat 
must,  for  his  own  protection,  always  exercise  that  reasonable  caution 
and  vigilance  which  the  rule  exacts.  It  is  of  the  utmost  importance, 
therefore,  that  in  the  examination  of  a  title  depending  on  a  judicial 
sale  every  essential  step  of  the  transaction  should  be  carefully 
scrutinized  and  the  facts  of  jurisdiction  established. 

§  483.  Title  under  Judicial  Sale.  The  title  acquired  under  a 
sale  by  order  of  the  court  differs  in  no  material  respect  from  that 
obtained  where  the  sheriff  is  the  vendor.  The  purchaser  is  entitled 
to  the  interest  of  all  the  parties  to  the  suit,  and  to  the  interest  of 
those  who  have  purchased  pendente  lite  from  any  of  the  parties.^* 
But  he  acquires  no  new  rights,  nor  does  the'  fact  that  the  court  is 
regarded  as  the  vendor  ^^  confer  upon  him  any  superior  equities. 
A  court  does  not  insure  the  title  to  real  property  sold  under  its  de- 
crees,^^  and  the  purchaser  buys,  presumably,  with  full  knowledge 
of  all  defects  and  jDre-existent  liens.^'''    He  is  charged  with  notice 

59  Dorsey  v.  Kendall,  8  Bush  65  In  all  sales  made  under  the  au- 
(Ky.),  294;  Allman  v.  Taylor,  101  thority  of  a  decree  in  equity,  the 
111.  185;  Norton  v.  Eeardon,  67  Kas.  court  is  the  vendor,  and  the  comuiis- 
302.  sioner   making   the   sale   is   the   mere 

60  Gray  v.  Brignardello,  1  Wall.  agent  of  the  court.  The  decree  is 
G27;  Fergus  v.  Woodworth,  44  111.  the  warrant  of  authority  to  sell: 
374.  Parrat  v.  Neligh,  7  Neb.  546;  Thomp- 

61  Norton  v.  Eeardon,  67  Kas.  302;  son  v.  Craighead,  32  Ark.  291. 
Noland    v.    Barrett,     122    Mo.    181;  66Gunton    v.    Zantzinger,    3    Mac- 
Bland  V.  Muncaster,  24  Miss.  62.  Arthur  (D.  C),  262. 

62  Allman   v.    Taylor,    101    111.    185.  67  Houslcy    v.    Lindsay,    10    Heisk. 

63  Holmes  V.  Shaver,  78  111.  578.  (Tenn.)   651;   Guynn  v.  McCauley,  32 
64Harrynian   v.   Starr,   56   Md.   63.       Ark.  97;   Capehart  v.  Dowery,  10  W. 


502  ABSTRACTS   OP   TITLE.  [§483 

of  all  facts  disclosed  by  the  record  which  affect  the  rights  of  others 
in  tilt'  property  sold.*^*  and  he  is  bound  to  examine  the  title  or  pur- 
chase at  liis  peril.  If  he  buys  without  an  examination  and  obtains 
no  title,  he  must,  as  a  general  rule,  suffer  the  loss  arising  from 
his  ne^'lect,  unless  fraud  or  mistake  has  entered  into  the  trans- 
action.^® Prior  to  confirmation  he  has  no  independent  rights,  but  is 
regarded  as  a  mere  proposer ;  ''^  after  confirmation  his  rights  become 
vested,  and  the  sale  will  not  be  set  aside  except  for  fraud,  mistake, 
surprise,  or  other  cause  for  which  equity  would  give  relief  if  the 
sale  had  been  made  by  the  parties  in  interest  instead  of  by  the 
court.'^  Neither  will  the  title  of  an  innocent  purchaser,  a  stranger 
to  the  record,  be  affected  by  the  subsequent  reversal  of  the  decree 
for  irregularity ;  "^^  but  where  the  purchaser  was  an  original  plain- 
tiff in  the  suit,  or  an  assignee  of  the  judgment  or  decree,  he  ac- 
quires only  a  defeasible  title,  which  may  be  defeated  by  a  subse- 
quent reversal,  and  the  same  rule  obtains  whether  the  reversal  is 
based  on  an  amendable  defect  or  one  that  is  incurableJ' 

§  484.  Rights  of  Purchaser.  A  purchaser  at  a  judicial  sale  has 
a  right  to  presume  that  it  is  conducted  according  to  the  provisions 
of  law,"^*  and  proceedings  in  court,  in  a  matter  in  which  it  has 
jurisdiction,  will  be  presumed  to  be  regular.  Hence,  a  purchaser, 
at  a  sale  made  by  order  of  such  court,  is  not  bound  to  look  further 
back  than  the  judgment  or  decree,  and  the  legal  effect  it  may 
have  on  the  title  which  is  the  subject  of  inquiry .'^  Such  judgment 
is  a  complete  protection  to  a  purchaser  under  it,'^  except  as  to 
matters  which  reach  the  jurisdiction  of  the  court.  Neither  is  he 
bound,  in  any  case,  to  see  to  the  application  of  the  purchase  money, 
for  this  is  under  the  control  of  the  court ;  and  however  unwise  the 
disposition  may  be,  his  title  will  not  be  affected  by  it.'' 

§  485.  Compelling  Purchaser  to  Take  Title.  A  sale  made  by 
order  of  a  court  of  equity  is,  until  final  ratification,  an  executory 

Va.   130;   Watson  v.   Hoy,  28  Gratt.  Ala.    358;    Fishback    v.    Weaver,    34 

(Va.)   698.  Ark.    569;    McLagan    v.    Brown,    11 

esWiUiamson  v.  Jones,  43  W.  Va.  111.   519. 

562;   Meacham  v.  Steele,  93  111.  135.  74  Browning   v.    Howard,    19    Mich. 

69Tilley  v.   Bridges,   105   111.   336.  323. 

70  State  V.  Eoanoke  Nav.  Co.,  86  75  Fleming  v.  Johnson,  26  Ark.  421; 
N.  C.  408.  Dugan  v.   Follett,   100  111.  581;   All- 

71  Berlin  v.  Melhorn,  75  Va.   639.  man  v.  Taylor,  101  111.  185. 

72  Sutton  V.  Schonwald,  86  N.  C.  76  Hening  v.  Punnett,  4  Daly  (N. 
198;  Barlow  v.  Stanford,  82  111.  298.  Y.),  543. 

73  McDonald   v.    Life    Ins.    Co.,    65  77Knotts  v.  Stearns,  91  U.  S.  638. 


§  486]  JUDICIAL    AND   EXECUTION   SALES.  503 

contract,  open  to  objection,  and  not  to  be  enforced  if  the  enforce- 
ment would  be  inequitable  and  against  good  conscience.'*  A  pur- 
chaser can  not  be  compelled  to  accept  a  doubtful  title.  A  title  is 
doubtful  when  its  condition  invites  litigation.  When  doubts  are 
raised  by  extrinsic  circumstances,  which  neither  the  purchaser  nor 
the  court  can  satisfactorily  investigate,  for  want  of  means  to  do  so, 
the  court  will  refuse  to  impose  such  title  on  the  purchaser.  When 
the  means  of  inquiry  are  offered,  and  the  result  is  satisfactory, 
performance  will  be  enforced.'^  But  all  objections  must  be  made 
before  the  sale  is  confirmed,***  for  after  confirmation  no  relief  will 
be  granted  to  the  purchaser  upon  the  ground  of  defect  of  title ;  *^ 
he  can  not  have  a  rebate  of  price  on  discovering  liens  unknown  to 
him  before  confirmation,*^  and  even  though  the  title  he  may  pro- 
cure from  the  court  may  be  worthless,  he  can  not  be  relieved  from 
payment  of  the  price.*^  A  purchaser  can  not,  after  confirmation, 
set  up,  as  a  ground  of  relief  against  his  purchase,  facts  known  to 
him  before  it  was  completed ;  **  and  one  who  buys  without  inquiry 
or  examination  will  not  be  relieved  because  of  a  misapprehension 
as  to  the  legal  effect  of  the  decree  for  sale  and  the  character  and 
extent  of  the  title  he  will  acquire ;  such  mistake  being  a  mistake  of 
law,  and  due  to  the  carelessness  of  the  purchaser  himself.** 

§  486.  Order  of  Confirmation.  After  the  sale,  and  before  the 
execution  of  a  conveyance,  in  all  cases  of  judicial  sales,  and  some- 
times of  execution  sales  as  well,*^  a  return  or  report  of  sale  must 

78  Hunting  v.  Walter,  33  Md.  60;  ter:  Watson  v.  Hoy,  28  Gratt.  (Va.) 
Ormsby  v.  Terry,  6  Bush  (Ky.),  553;  698.  But  if  mistake  is  relied  on  it 
Mullins  V.  Aiken,  2  Heisk.  (Tenn.)  must  be  the  mistake  of  both  parties. 
535.  Long  v.  Weller,  29  Gratt.   (Va.)  347. 

79  Kostenboder  v.  Spotts,  80  Pa.  St.  A.nd  see  Berlin  v.  Melhorn,  75  Va. 
430;  Monaghan  v.  Small,  6  Eich.   (S.  639. 

C.)    177;   Graham  v.  Bleakie,  2  Daly  82  Farmers'  Bank  v.  Peter,  13  Bush 

(N.  Y.),  55.  (Ky.),   591;    Curtis  v.   Root,   28   HI. 

80  Long  V.  Weller,  29  Gratt.  (Va.)       367. 

347,  83Capehart  v.  Dowery,  10  W.  Va. 

81  Farmers'  Bank  v.  Peter,  13  Bush  130,  and  see  Dills  v.  Jasper,  33  HI. 
(Ky.),  591.     But    the    general    rule,       263. 

that    objections,    by    purchasers,     to  84  Spence     v.     Armour,     9     Heisk. 

judicial    sales,    for    defects    of    title,  (Tenn.)  167. 

must  be  made  before  the  sale  is  con-  85  Hayes   v.    Stiger,    29   N.   J.    Eq. 

firmed  by  the  court,  and  that  objec-  196;    Morris    v.    Hogle,   37    111.    150; 

tions   afterward   come   too   late,   does  Johnson  v.  Baker,  38  111.  98. 

not   apply   to    the    equity   of   a   pur-  86  Confirmation    of    execution    sales 

chaser  arising  from  after  discovered  is  not  necessary  at  common  law,  but 

mistakes,    fraud,    or    other   like    mat-  is  sometimes  rendered  so  by  statute. 


504  ARSTRACTS   OF   TITLE.  [§  486 

first  be  made  to  the  court  which  ordered  the  same,  which  upon  ex- 
amination approves  and  confirms  the  actimi  of  tlie  officer  wlio  made 
the  sale.*''  Until  this  has  been  done  the  sale  is  incomplete,  and  con- 
fers no  riprlits  on  the  pnrcliaser.**  In  judicial  sales  a  confirmation 
is  rendered  necessary  from  the  fact  that  the  court,  and  not  the 
officer  makinpr  the  sale,  is  the  vendor,  and  confirmation  is  rejrardcd 
as  tlie  final  consent;  but  even  where  there  has  been  no  confirma- 
tion, if  a  deed  has  been  made  and  (l('liv(M'C(l,  and  tiicrc  has  been  a 
possession  and  holdin<i:  thereunder,  time  may,  il"  sufficicnth'  long, 
operate  to  contirm  and  ratify  the  sale,  and  perfect  the  title  of  the 
purchaser.'® 

\Vhere  an  abstract  of  judicial  procecdinp:s  cnlminatinfj  in  a  sale 
and  conveyance,  is  shoAvn,  the  order  of  confirmation  is  material,  and 
if  wantinp:,  the  apparent  defect  should  be  noted  by  counsel  and 
proper  inquiries  made  regarding  same. 

§  487.  Effect  of  Confirmation.  An  order  confirming  a  sale  of 
land,  made  by  a  court  having  jurisdiction  of  the  parties  and  the 
subject-matter,  is  a  final  and  conclusive  determination  of  all  mat- 
ters passed  upon  or  which  might  have  been  passed  upon  had  they 
been  presented  by  way  of  objection.  Tt  binds  all  of  the  parties  and 
their  privies  and  forever  precludes  any  attack  upon  the  sale  except 
for  fraud,  mistake,  surprise,  or  some  other  circumstance  for  which 
equity  would  give  relief  if  the  sale  had  been  made  by  the  parties  in 
interest  instead  of  by  the  court.®®  So,  too,  as  the  order  of  con- 
firmation is  practically  a  final  judgment  it  has  the  effect  of  curing 
all  irregularities  in  the  proceedings  leading  up  to  the  sale.®^ 

But,  while  the  order  of  confirmation  cures  all  irregularities  in 
the  mode  of  making  the  sale  it  adds  nothing  to  the  authority  of 

87  A   sale   of   land   under   a   decree  sarv:  McHany  v.  Schcnk,  88  111.  3.17. 

will   not   be   approved   by  a   court   if  89  Gowan  v.    Jones,   18   Miss.    164; 

fraud   or  misconduct  on  the   part  of  llorer  on  Jud.  and  Ex.  Sales,  57.    In 

any    of    the    parties    to    the    sale    is  such  an  event,  however,  the  deed  would 

shown.      Barling   v.    Peters,    134    111.  be  regarded  only  as  color  of  title  in 

609.  connection  with  adverse  possession. 

88Busey  v.  Hardin,  2  B.  Mon.  90  Kincaid  v.  Tutt,  88  Ky.  392; 
(Ky.)  407;  Bank  v.  Humphreys,  47  Berlin  v.  Melhom,  75  Va.  639;  Brown 
111.  227 ;  Williamson  v.  Berry,'  8  How.  v.  Gilmor,  8  Md.  322 ;  Speck  v.  Pull- 
547;  Thorn  v.  Ingram,  25  Ark.  52;  man  Go.,  121  111.  33;  Willis  v.  Nichol- 
Valle  V.  Fleming,  19  Mo.  454;  Hunt-  son,  24  La.  Ann.  545. 
ing  V.  Walter,  33  Md.  60.  Approving  91  Thorn  v.  Ingram,  25  Ark.  53 ; 
the  sale  makes  the  officer's  act  that  of  O'Brien  v.  Gaslin,  20  Neb.  347; 
the  court,  and  where,  upon  such  ap-  Koehler  v.  Ball,  2  Kan.  172;  Hotch- 
proval,  he  is  ordered  to  make  a  deed,  kiss  v.  Cutting,  14  Minn.  537 ;  Con- 
no  order  confirming  the  deed  is  neces-  over  v.  Musgrove,  68  111.  58. 


§  488]  Judicial  and  execution  sales.        ,  505 

the  officer  who  made  it.  If  the  sale  was  without  authority,  the 
ratification  of  it  by  the  court  must  be  considered  as  having  been 
given  inadvertently,^^  or,  if  given  deliberately  and  on  a  full  ex- 
amination of  the  facts,  must  still  be  regarded  as  an  unauthorized 
proceeding.^^  So,  too,  where  the  court  has  exceeded  its  jurisdiction 
in  ordering  the  sale,  a  confirmation  would  have  no  effect,  for  the 
sale  being  void,  there  was  no  subject-matter  upon  which  the  order 
of  confirmation  could  act.  If  the  court  had  no  jurisdiction  to  order 
the  sale,  it  had  none  to  confirm  it,  for  where  there  is  no  power  to 
render  a  judgment  or  to  make  an  order,  there  can  be  none  to  con- 
firm or  execute  it.^*  But  where  these  questions  do  not  arise  it  is 
presumptive  evidence  that  the  sale  was  regularly  and  properly 
made,  and  questions  arising  under  it  can  not  be  presented  col- 
laterally .^^ 

§  488.  Certificate  of  Sale.  Where  a  contract  for  the  sale  of  land 
is  executory  on  both  sides,  it  is  necessary  that  it  should  be  evi- 
denced by  a  memorandum  in  writing,  signed  by  the  vendor,  and 
sheriff's  sales  form  no  exception  to  the  general  rule.^^  The  usual 
method  is  to  execute  a  certificate  of  sale.  If  no  certificate  or  deed  is 
given  to  the  purchaser,  and  no  memorandum  of  the  sale  is  made  on 
striking  off'  the  property,  it  has  been  held  that  the  sale  can  not  be 
enforced,  even  though  the  purchase  money  is  paid,  and  the  sheriff 
afterward  makes  due  return  of  the  sale.^'  But  this  is  an  extreme 
view.  The  sheriff',  in  making  sales,  acts  as  the  legal  agent  and 
representative  of  the  plaintiff'  and  defendant  in  the  judgment,  and 
of  the  accepted  bidder  at  the  execution  sale,  and  he  has  the  right  to 
bind  all  the  parties  by  his  memorandum.  This,  it  seems,  he  may  do 
by  his  return  on  the  execution ;  ^®  his  return  of  the  facts  attending 
the  purchase,  made  at  the  time  of  the  sale,  taking  the  case  out  of 
the  statute  of  frauds,^^  and  binding  all  parties  by  an  enforceable 

92  Wills  V.  Chandler,  1  McCrary  (C.  96  Kuckle  v.  Barbour,  48  Ind.  274 ; 

Ct.),    276.      Hickenbothana    v.    Black-  Evans  v.  Ashley,  8  Mo.   177. 

ledge,  54  111.  316.  97  Gossard    v.    Ferguson,    54    Ind. 

93Shriver's  Lessee  v.  Lynn,  2  How.  519;   but  see  Sanborn  v.  Chamberlin, 

60,  and  see  Jacobus  v.  Smith,  14  111.  101  Mass.  409. 

359.  98  Warehouse  Co.  v.  Terrill,  13  Bush 

94Townsend  v.  TaUant,  33  Cal.  54;  (Ky.),  463;    Sanborn  v.  Chamberlin, 

Hawkins    v.    Hawkins,    28    Ind.    70;  101  Mass.  409;  Eemington  v.  Linthi- 

Bethel  v.   Bethel,   6  Bush    (Ky.),   65.  cum,  14  Pet.  92. 

95  Crowell  V.  Johnson,  2  Neb.  146 ;  99  It  is  a  prevailing  rule,  however, 

Matthews     v.     Eddy,     4     Oreg.     225;  that  after  confirmation  judicial  sales 

Eaton  v.  White,  18  Wis.  517;    Speck  are  not  within  the  statute  of  frauds; 

V.  Pullman  Co.,   121   111.  33.  Bozza  v.  Eowe,  30  111.  198;  Fire  Ins. 


506  ARSTRACTS   OP   TITLE,  [§  488 

executory  contract.  It  is  no  part  of  the  office  of  a  sheriff's  return, 
liowevor,  to  show  wliat  hind  is  sohl  on  execution,  the  province  of  a 
return  being  to  show  the  satisfaction  or  part  satisfaction  of  the 
judfjnient,  or  failure  to  make  satisfaction  thereof,  and  the  par- 
ticulars of  the  sale,  subject-matter,  consideration,  purcliase,  etc., 
are  best  shown  by  the  ccrtiticate  of  purchase  or  by  the  recitals  in 
the  sheriff's  deed.* 

Deeds  do  not  issue  immediately  upon  execution  sales,  and,  in 
many  cases,  judicial  sales  as  well,  but  a  reasonable  time  is  allowed 
during  which  the  judgment  debtor  may  redeem  the  i)roi)ei-ty  ui)on 
payment  of  the  judgment,  costs,  charges,  etc.,  and  a  certiticate  stat- 
ing tiie  facts  is  issued  to  the  purchaser  at  the  time  of  tiie  sale.^ 
A  duplicate  of  this  certificate  is  recorded  by  the  oriiccr  in  the 
registry  of  deeds,  and  the  certificate,  duplicate,  or  record  of  same, 
is,  by  law,  made  evidence  of  the  facts  therein  stated.  In  case  of 
redemption,  as  provided  by  law,  a  certificate  of  redemption  is  issued 
and  recorded  in  like  manner.  The  certificate  of  sale  made  by  the 
sheriff  is  sulficientl}'  shown  as  follows. 


Seth  Ilanchett,  Sheriff 
of  Cook  Co.,  Ills., 


Certificate  of  sale. 

Dated  March  1,  1882. 
to  j.         Recorded  March  2,  1882. 

Hiram  Smith.  j         Book  200,  page  210. 

J  Said  Sheriff  (by  deputy)^  certifies 

that  by  virtue  of  a  certain  (alias,  pluries,  etc.)  writ  of  execution  to 
him  directed  from  the  Superior  Court  of  Cook  County,  issued  on  a 
judgment  rendered  at  the  November  Term,  1881,  of  said  court,  in 
favor  of  William  Thompson,  plaintiff,  against  Thomas  Jones,  de- 
fendant, for  $1,000.00  and  costs,  dated  February  1,  1882,  he  did  on 
March  1,  1882  at  10  o'clock  A.  M.,  at  the  front  door  of  the  court 
house  in  the  city  of  Chicago  (the  time  and  place  aforesaid  having 
been  duly  advertised  according  to  law),  sell  at  public  vendue  all 
right,  title  and  interest  of  said  defendant  in  and  to  [here  set  out 
the  description  as  found  in  the  certificate]  to  Hiram  Smith  for 
$1,  035.00,  said  sum  being  the  highest  and  best  bid  offered  for  said 
tract  or  lot  of  land,  the  same  having  been  first  offered  in  separate 

Co.  V.  Loomis,  11  Paige,  431;  Steward  2  The  legal  effect  of  the  certificate 

V.  Garvin,  31  Mo.  36;  Hutton  v.  Wil-  is   to   evidence   the   lien   of   the   pur- 

liams,    35    Ala.    503.      And    in    some  chaser  upon  the  lands,  for  the  amount 

States  they  are  held  to  be  not  within  of   his   bid   and   interest,   during   the 

the  statute   at  all:    Fulton  v.   Moore,  period       allowed      for      redemption: 

25    Pa.    St.    468;    Halleck   v.    Guy,    9  Vaughn  v.  Ely,  4  Barb.  156,  and  see 

Cal.   181.  Evertson  v.  Sawyer,  2  Wend.  507. 
1  Gardner  v.  Eberhart,  82  111.  316.  3  When  such  is  the  case. 


§  488]  JUDICIAL   AND   EXECUTION   SALES.  507 

tracts  or  lots  without  receiving  any  hid  or  bids  therefore  or  for  any 
part  thereof,  and  the  purchaser  will  he  entitled  to  a  deed  of  the 
premises  so  sold  on  March  1, 1883,  unless  the  same  shall  he  redeemed 
as  provided  hy  law. 

As  has  been  seen,  where  lands  are  sold  by  order  of  court,  although 
the  sheriff  is  a  proper  person  to  make  the  sale,  the  court  has  dis- 
cretionary power  to  appoint  a  commissioner,  master  in  chancery,  or 
other  officer  of  the  court,  or  any  fit  and  proper  person  to  make  it. 
Sales  made  by  a  commissioner  or  master,  under  the  direction  of  a 
court  of  chancery,  do  not  stand  in  all  respects  on  a  footing  with 
sales  made  by  the  sheriff  under  an  execution.  The  latter  are  made 
under  the  naked  authority  of  the  writ,  the  former  under  the  direct 
supervision  of  the  court.*  Judicial  sales  are  usually  intrusted  to  a 
master,  who  also  executes  the  deed,  and  on  such  sale  a  certificate 
issues  to  the  purchaser  in  like  manner  as  in  sales  on  execution. 
The  following  abstract  presents  the  salient  features  of  a  master's 
certificate : 

Edward    A.    Dicker,  ]      Certificate  of  Sale. 

Master  in   Chance-   j     Dated  May  3,  1880. 

ery  of  the   Circuit   |      Recorded  May  8,  1880. 

Court      of       Cook   |      Book  210,  page  500. 

County,  III.,  1-     Said  master  certifies  that  in  pursuance  of 

to  I  a  decree  entered  June  15,  1879,  hy  said 

William  Jackson.  |  court  in  the  cause  in  chancery  entitled 
Doc.  10,028.  I  [here  set  out  the  title  of  the  cause]  he  duly 

J  advertised  according  to  law  the  lands  here- 
inafter described  to  he  sold  at  puhlic  auction  to  the  highest  and  hest 
bidder  for  cash  at  10  o'clock  A.  M.,  on  May  3,  1880,  at  the  front 
door  of  the  court  house,  in  the  city  of  Chicago,  III. 

That  at  the  time  and  place,  so  aforesaid,  appointed  for  said  sale, 
he  attended  to  make  the  same  and  offered  and  exposed  said  lands 
for  sale  at  public  auction  to  the  highest  and  hest  bidder  for  cash. 
Whereupon  William  Jackson  offered  and  hid  therefor  $1,000.00, 
and  that  being  the  highest  and  best  bid  therefor,  he  accordingly 
struck  off  and  sold  to  said,  bidder  for  said  sum  the  said  lands  which 
are  situated  in  Cook  Cou7ity,  Illinois,  and  described  a.<i  follows,  to 
wit:  [here  describe  the  property!.  He  further  certifies  that  said 
William  Jackson,  his  legal  representatives  or  assigns,  will  be  en- 

4Meetze  v.  Padgett,  1  S.  C.   127; 
Lasell   V,    Powell,    7    Coldw.    (Tenn.) 

277. 


508  ARSTBACTS   OF   TITLE.  [§488 

fifird  iu  a  (Iced  of  said  premises  o)i  May  3,  1881,  unless  the  same 
shall  he  redeemed  aeeording  to  Jaw. 

TIio  ('(M'tificatc'  of  sale  confers  on  the  holder  no  title  or  interest 
in  the  land,  especially  where  the  time  for  redemption  has  not  ex- 
jiired,'*  and  the  possession  of  the  defendant  in  execution  can  not 
be  distui-hed  until  his  title  has  been  transferred  by  the  offtcer's 
deed.®  After  th(>  execution  of  a  deed  the  certificate  of  sale  ceases 
to  be  an  essential  iniuiiment  of  title.' 

§  489.  Assignment  of  Certificate.  A  certificate  given  at  a  judi- 
cial or  execution  sale  is  usually  assignable  by  indorsement,  and  the 
assignee  is  entitled  to  the  benefits,  in  every  respect,  to  which  the 
original  purchaser  was  entitled  therefrom.  On  the  other  hand,  it 
is  sub.ject  in  his  hands  to  all  defenses  that  could  have  been  made 
against  it  in  the  hands  of  the  assignor,  such  assignee  standing  in  the 
shoes  of  the  original  purchaser.  But  such  purchaser  does  not  take 
the  land  itself  b}'  his  bid ;  he  has  only  an  incipient  interest  that  may 
or  may  not  ripen  into  an  absolute  estate ;  and  as  a  party  can  not 
assign  that  which  he  hath  not,  so  such  purchaser,  not  having  the 
legal  title  to  the  property,  of  course  can  not  assign  it.  It  would 
seem,  therefore,  that  the  assignee  can  not  be  regarded  as  an  inno- 
cent i)urchaser,  nor  entitled  to  protection  as  such,  until  he  is  clothed 
with  a  legal  title  by  a  sheriff's  dced.^ 

Where  the  original  purchaser  dies  before  the  issuance  of  a  deed, 
in  the  absence  of  an  express  devise,  his  executors  will  succeed  to  no 
rights  in  the  land,  and  have  no  right  to  demand  a  deed,  but  the 
sheriff 's  or  master's  deed  should  be  made  to  the  deceased  pur- 
chaser's heirs  at  law.® 

§  490.  Proof  of  Title  Under  Judicial  and  Execution  Sales. 
AVliere  a  i)erson  attemjjts  to  avail  himself  of  a  decree,  as  an  adjudi- 
cation upon  the  subject-matter,  or  as  a  link  in  his  chain  of  title, 
founded  on  a  judicial  sale  under  the  decree,  he  is  required  to  pro- 
duce the  judgment  roll,  so  that,  among  other  things,  the  court  may 
determine,  on  an  inspection  of  the  entire  roll,  whether  the  court 
which  rendered  the  decree  had  jurisdiction  of  the  subject-matter.*" 

6  Huftalin  v.  Misner,  70  111.  55.  9  Totts   v.   Davenport,   79   111.   455; 

6  Hays  V.   Eussell,  70   111.   669.  Swink   v.   Thompson,   31    Mo.   336. 

7  Gardner  v.  Eberhart,  82  111.  316.  10  Sec  "Actions  and  Proceedings," 

8  Roberts   v.    Clelland,   82   HI.   538;  infra. 
Reynolds  v.  Harris,  14  Cal.   667,  and 

see  Messcrschmidt  v.  Baker,  22  Minn. 
81. 


§  491]  JUDICIAL   AND   EXECUTION    SALES.  509 

It  is  true,  the  i)urehaser  ma}'  rest,  in  support  of  his  title,  upon  the 
judgment  or  decree,  and  the  deed  thereunder,  but  he  must  produce 
a  valid  judgment  or  decree,  and  the  well  established  rule  is,  that 
the  method  of  proving  such  judgment  or  decree  to  be  valid  is  by  the 
production  of  the  roll,  on  an  inspection  of  which  it  may  be  deter- 
tnined   whether   the   court  had   the   necessary   jurisdiction   of   the 
parties  i^nd  of  the  subject-matter.^^     In  analogy,  therefore,  to  the 
presentation  of  the  judgment  roll,  a  synopsis  of  the  papers  and  pro- 
ceedings in  the  cause  should  always  form  a  preliminary  statement 
to  the  abstract  of  the  officer's  deed,  and  this  should  be  sufficiently 
full  and  explicit  to  enable  counsel  to  pass  with  judicial  discrimi- 
nation upon  the  merits  of  the  title  as  affected  by  the  proceedings.  In 
all  proceedings  in  equity,  where  the  suits  are  wholly  or  partially 
in  rem,  this  is  always  done,  but  in  legal  actions,  or  where  the  pro- 
ceeding is  in  personam,  a  different  rule  is  generally  observed.    The 
reason  for  this  is  apparent,  in  that  personal  actions  affect  the  land 
only  collaterally  and  by  reason  of  the  statutory  lien  of  the  judg- 
ment, hence,  examiners  have  not  deemed  it  necessary  to  show  the 
various  steps  which  led  up  to  the  judgment,  but  have  contented 
themselves  with  a  simple  showing  of  the  fact  that  judgment  was 
rendered.    Yet  if  the  court  failed  to  obtain  jurisdiction  of  the  per- 
son of  the  judgment  debtor,  and  has  erroneously  proceeded  to  hear 
the  proofs  and  render  judgment  when  no  sufficient  steps  had  been 
first  taken  to  bring  the  parties  properly  before  it,  any  sale  made  in 
satisfaction  of  such  judgment  would  be  void  and  confer  no  title  on 
the  purchaser.^2    These  are  extreme  cases,  yet  they  have  occurred, 
and  similar  cases  may  again  occur,  and  it  would  seem,  therefore, 
that  in  actions  in  personam,  followed  by  judgment,  execution  and 
deed,  sufficient  should  be  shown  to  enable  counsel  to  see  that  the 
parties  were  properly  before  the  court.     In  any  event,  the  ex- 
aminer should  inspect  the  judgment  roll  as  well  as  the  docket, 
and  if,  from  such  inspection,  palpable  errors  are  manifest  they 
should  be  properly  noted. 

§  491.  Continued — Presumptions.  It  is  true,  however,  as  a  gen- 
eral proposition,  that  a  domestic  judgment  of  a  court  of  general 
jurisdiction,  upon  a  subject-matter  within   the  ordinary  scope  of 

11  Harper  v.  Eowe,  53  Cal.  233;  1  the  judgment  was  afterwarrl  declared 
Greenl.  Ev.  §511;  2  Phil.  Ev.  138;  void  for  want  of  proof  of  service, 
Vail  V.  Iglehart,  69  111.  332.  and  the  sale  declared  a  nullity;   and 

12  Albee  v.  Ward,  8  Mass.  79 ;  Mil-  see  Johnson  v.  Bnker,  38  Til.  98 ;  but 
ler  V.  Handy,  40  111.  448.  In  this  compare  Fitch  v.  Boycr,  51  Tex.  336. 
case,  there  was  a  sale  under  execution ; 


510  ARSTRACTS   OF   TITLE,  [§  491 

its  powers  and  proceedings,  is  entitled  to  such  absolute  verity, 
that,  in  a  collateral  action,  even  where  the  record  is  silent  as  to 
notice,  the  j)rcsumption,  when  not  contradicted  by  the  record  itself, 
that  the  court  had  jurisdiction  of  the  person  also,  is  so  conclusive 
that  evidence  aimnde  will  not  be  admitted  to  contradict  it.^' 
It  is  probably  on  the  strength  of  this  doctrine  that  examiners  have 
been  accustomed  to  show  only  the  fact  of  judgment,  and  not  the 
preliminary  steps  attending  it,  assuming  the  judgment  to  be  valid ; 
and  attorneys  have  passed  upon  the  facts  so  presented  in  view  of 
the  oft-repeated  principle,  that  all  that  a  purchaser  must  show 
to  sustain  his  title,  is  a  valid  judgment,  execution,  and  a  sheriff's 
deed.^*  If  the  court  had  jurisdiction  of  the  subject-matter,  and 
the  ]iroper  parties  were  before  it,  and  its  proceedings  were  regu- 
lar, and  the  sale  was  properly  conducted,  then  the  title  of  an 
innocent  purchaser  will  not  be  disturbed,  and  he  may  rest  secure 
upon  the  assurances  of  his  deed.  These  are  the  great  essentials 
to  a  perfect  title,  and  all  that  a  purchaser  must  show  to  satis- 
factorily prove  it. 

A  purchaser  is  not  bound  to  go  through  all  the  proceedings, 
and  to  look  into  all  the  circumstances,  and  see  that  the  judg- 
ment or  decree  is  right  in  all  its  parts.  He  has  the  right  to 
presume  that  the  court  has  taken  the  necessary  steps  to  investi- 
gate the  rights  of  the  parties,  and  upon  such  investigation  has 
properly  rendered  a  judgment  or  decreed  a  sale.  He  will  not 
be  affected  by  any  imperfection  in  the  frame  of  the  bill  if  it 
contain  sufficient  matter  to  show  the  propriety  of  the  decree,  and 
the  propriety  of  the  decree  must  be  attested,  and  its  validity  de- 
termined, by  the  then  existing  circumstances.*^ 

§  492.  Probate  Sales.  "Probate  sales,"  says  Mr.  Freeman,  "we 
are  sorry  to  say,  are  generally  viewed  with  extreme  suspicion. 
Though  absolutely  essential  to  the  administration  of  justice,  and 
forming  a  portion  of  almost  every  chain  of  title,  they  are  too  often 

18  Fitch    V.    Boyer,    51    Tex.    336 ;  sumption  in  favor  of  the  jurisdiction 

Guilford  v.  Love,  49  Tex.  715;   Grif-  and  regularity  of  the  proceedings  of 

fin  V.  Page,   18  Wall.  350;   Hahn  v.  courts  of  record  or  general  jurisdic- 

Kelly,     34     Cal.     391;     Freeman    on  tion,  had  its  origin  in  the  fact  that, 

Judg'ts,    §124;    2    Am.    Lead.    Cas.  at   common    law,    no    judgment   could 

736.  be    given    against    a    defendant    until 

14  Coffee    V.    Silvan,    15    Tex.    362;  he  had  appeared  in  the  action:    Neflf 

Hughes  V.  Watt,   26   Ark.   228;   Len-  v.  Pennoyer,  3  Sawyer,  274. 
nox  V.  Clarke,  52  Mo.  115;  Splahn  v.  15  Zirkle  v.  McCue,  26  Gratt.  (Va.) 

Gillespie,  48  Ind.  397;  Mayo  v.  Foley,  517. 
40   Cal.   281.     The   common  law   pre- 


§  492]  JUDICIAL   AND   EXECUTION   SALES.  511 

subjected  to  tests  far  more  trying  than  those  applied  to  other 
judicial  sales.  Mere  irregularities  of  proceeding  have,  even  after 
the  proceedings  had  been  formally  approved  by  the  court,  often 
resulted  in  the  overthrow  of  the  purchaser's  title.  In  fact,  in  some 
courts,  the  spirit  manifested  toward  probate  sales  has  been  scarcely 
less  hostile  than  that  which  has  made  tax  sales  the  most  precarious 
of  all  the  methods  of  acquiring  title.  "^^  Possibly  the  learned 
author  has  taken  a  too  extreme  view  of  the  matter,  though  it  must 
be  conceded  that  by  reason  of  the  many  jurisdictional  facts  and 
circumstances  which  environ  sales  of  this  character,  titles  derived 
thereunder  are  not  always  as  stable  as  those  derived  under  sales  in 
equity.  Or  even  by  execution. i'''  The  jurisdiction  of  probate  courts 
to  order  the  sale  of  lands  of  a  decedent  is  statutory  and  limited, 
and  must  appear  from  the  record,  but,  while  no  intendments  will  be 
made  in  its  favor,  the  tendency  is  to  disregard  mere  irregularities, 
errors  of  form  and  other  matters  not  directly  affecting  jurisdic- 
tion, and  all  presumptions  in  this  respect  are  in  favor  of  the  sale 
and  of  the  validity  of  the  title  based  on  such  proceedings.^* 

Probate  courts  are  invested  by  law  with  a  general  jurisdic- 
tion in  cases  where  real  estate  is  to  be  sold  for  the  payment  of 
the  debts  ot  decedents,  and  where  a  court  ordering  a  sale  has 
jurisdiction  of  the  subject-matter  and  of  the  proper  parties,  even 
if  the  proceedings  are  irregular  and  erroneous,  the  decree  and 
sale   under   it  can   not  be   assailed   in   a   collateral   proceeding,^^ 

16  Freeman  Void  Jud.  Sales,  44.  v.  Parker,  7  Mass.  79;  Smith  v.  Rice, 

17  "While  the  decrees  of  a  probate  11  Mass.  507),  and  an  unwarranted 
court,  upon  matters  within  its  juris-  step  at  the  outset  will  suffice  to  vitiate 
diction  are  as  final  and  conclusive  as  all  subsequent  proceedings.  Thus,  if 
the  judgments  of  any  other  court  the  original  appointment  of  the  ad- 
( Barker  V.  Barker,  14  Wis.  131;  Cum-  ministrator  is  void,  all  the  subse- 
mings  V.  Cummings,  123  Mass.  271;  quent  proceedings  are  void:  Gary's 
Dayton  v.  Mintzer,  22  Minn.  393),  Prob.  Prac.  12;  Frederick  v.  Pac- 
and  its  records  import  absolute  verity  quette,  19  Wis.  541. 

(Wood    V.    Myrick,    16    Minn.    494;  18  Reynolds  v.  Schmidt,  20  Wis.  374; 

Tibbitts    V.    Tilton,    24    N.    H.    124),  Mohr  v.  Tulip,  40  Wis.  66;  Woods  v. 

yet,    owing    to    the    peculiarly    con-  Monroe,    17    Mich.    238;    Morrow    v. 

nected    character    of    its   proceedings.  Weed,   4   Iowa,   77;    King   v.   Kent's 

and    the    interdependence    of    all    its  Heirs,  29  Ala.  542 ;  Moffitt  v.  Moffitt, 

acts,  as  well  as  the  further  fact  that  69  111.  641 ;  Maurr  v.  Parrish,  26  Ohio 

its  practice  is  neither  in  accordance  St.  636;  Bowen  v.  Bond,  80  111.  351. 

with     established     common     law     nor  19  Nichols   v.   Mitchel,   70   111.   258 ; 

chancery    precedents,    and    hence    not  Wing  v.   Dodge,  80  111.  564;   Dayton 

reviewable    in    the   light    afforded    by  v.  Mintzer,  22  Minn.  393;  Farrington 

such  precedents,  they  are  not  merely  v.  Wilson,   29   Wis.   383;    Falkner  v. 

voidable   if   want   of   jurisdiction   ap-  Guild,   10  Wis.  563. 
pears,    but    absolutely    void    (Sumner 


512  ABSTRACTS   OP   TITLE.  [§  492 

nor  can  tlic  purLliasei-  Tor  that  reason  avoid  the  sale.^**  Until 
reversed,  the  decree  confers  power  to  sell  and  pass  the  title,  how- 
ever erroneous  it  may  be.^^  No  class  of  public  sales  arc  better 
entitled  to  a  just  dejjree  of  protection  than  tliose  of  administra- 
lors.22 

liut  while  this  represents  the  prevailing  sentiment  it  must  yet 
be  remembered  that  the  administrator,  as  such,  has  no  interest 
in  or  power  over  the  land  belonging  to  his  intestate  at  his  death; 
nor  has  the  probate  court  any  jurisdiction  over  it  for  any  purpose 
whatever,  but  only  a  simple  power  to  order  its  sale.  This  power 
is  derived  wholly  from  special  legislative  grant  and  its  exercise 
is  restricted  to  the  happening  of  particular  contingencies.  These 
contingencies  are  jurisdictional  and  should  all  appear  affirmatively. 
They  consist,  mainly,  of  the  fact  of  insolvency  of  personal  estate,^^ 
as  shown  by  the  administrator's  report;  notice  to  persons  inter- 
ested, and  a  liuding  of  the  fact  of  insufficiency  of  personal  assets. 
The  record  must  show  on  its  face  tiiese  jurisdictional  facts.^* 

It  must  further  be  borne  in  mind,  tliat  the  foundation  of  all 
title  derived  through  an  administrator  is  the  fact  of  the  death 
of  the  intestate.  This  must  always  affirmatively  appear — directly 
and  positively.  Administrations  are  sometimes  granted  on  pre- 
sumptions, but  every  one  acts  at  his  peril  in  dealing  with  an  ad- 
ministrator who  has  been  appointed  upon  a  mere  presumption  that 
his  supposed  intestate  is  dead;  and  all  persons  are  conclusively 
presumed  to  know%  if  the  supposed  intestate  should  subsequently 
turn  up  alive,  that  the  grant  of  administration,  and  all  acts  done 
under  it,  would  be  absolutely  void.^^ 

20  Wing  V.  Dodge,  80  111.  564.  But  of  late  years  we  may  find  some 

21  Wing  V.  Dodge,  80  111.  564;  departures  therefrom  in  a  few  States 
Montgomery  v.   Johnson,  31   Ark.   74.  where  it  is  held  that  where  the  fact 

22  Goudy  V.  Hall,  36  111.  313;  Me-  of  death  has  been  presented  to  and 
Cowan  V.  Foster,  33  Tex.  241.  decided  by  a  court  of  competent  juris- 

23  The  lien  of  a  creditor  in  probate  diction  the  adjudication  becomes  con- 
is  different  from  all  other  liens  upon  elusive  of  the  fact,  however  erroneous 
land  in  this,  that  it  can  never  be  en-  such  adjudication  may  be,  until  set 
forced  until  the  personal  estate  of  the  aside  in  a  direct  proceeding  (Porter 
decedent  has  been  exhausted.  Garvin  v.  Purdy,  29  N.  Y.  106)  and  that 
V.   Stewart,  59   111.   232.  titles    acquired   under   such   adjudica- 

24  Eoot  V.  McFerrin,  37  Minn.  17.  tion  will  remain  intact,  notwithstand- 
26  Springer  v.  Shavender,  118  N.  C.       ing    the    supposed    decedent    returns 

33;   Melia  v.  Simmons,  45  Wis.  334;  alive.     See  Scott  v.  McNeal,  5  Wash. 

Thomas  v.  People,  107  111.  517.     The  309.     The  leading  case  on  this  point 

text  states  the  old  and  well  established  is    Roderigas    v.    East   Kiver   Savings 

rule  and   the  one  which   obtains   gen-  Institution,  63  N.  Y.  460,  but  compare 

erally  throughout   the  United   States.  the  same  case  in  76  N.  Y.  316. 


§  493]  JUDICIAL    AND   EXECUTION   SALES.  513 

§  493.  Nature  and  Requisites  of  Probate  Sales.  Sales  in  probate, 
though  made  in  connection  with,  and  as  a  part  of  the  regular  ad- 
ministration and  settlement  of  the  decedent's  estate,  are  yet  to  be 
regarded  as  special  and  independent  proceedings.  Such  proceed- 
ings are  regularly  inaugurated  by  the  filing  of  a  petition,  stating 
the  necessary  jurisdictional  facts,  and  praying  for  license  to  sell, 
and  it  is  this  petition,  and  the  recital  of  the  statutory  requisites, 
which  gives  to  the  court  its  jurisdiction  to  take  cognizance  of  the 
matter  and  make  subsequent  orders  in  relation  to  same.^*  The 
proceeding  is  in  the  nature  of  an  action,  of  which  the  petition  is 
the  commencement,  and  the  order  of  sale  the  judgment,  the  whole 
forming  a  new,  separate  and  independent  proceeding,  depending 
for  its  validity  upon  the  suflficiency  of  the  facts  stated  in  the 
petition.'^''^  All  the  necessary  features  common  to  equitable  actions, 
both  as  respects  the  subject-matter  and  the  parties,  must  be  present 
and  affimatively  appear,  and  as  the  action  is  adversary  in  its 
character,  and  in  derogation  of  the  rights  of  the  devisees  and 
heirs,  all  the  parties  having  an  interest  in  the  property,  defend- 
ant as  well  as  plaintiff,  must  be  regularly  brought  before  the 
court.28  The  filing  of  the  petition  will  give  the  court  jurisdiction 
of  the  subject-matter,^*  but  jurisdiction  must  also  be  obtained  over 
the  persons  of  the  heirs  and  devisees  in  the  manner  prescribed  by 
law,  as  well  as  of  the  subject-matter,  or  its  order  will  be  void.^" 
Hence,  the  proceedings  must  show  issuance  and  service  of  citations, 
or  appearance  in  the  action,  and  a  due  observance  of  the  rights  of 
minors  and  others  under  disability,  for  whom  special  guardians  must 

26  Pryor  v.  Downey,  50  Cal.  389 ;  which  for  many  years  was  accepted 
Hall  V.  Chapman,  35  Ala.  553;  Jack-  in  this  country,  and  is  founded  on 
son  V.  Eobinson,  4  Wend.  436;  Ethell  better  reason  and  more  correct  prin- 
V.  Nichols,  1  Idaho  (N.  S.)  741.  Mof-  ciples.  In  that  case  it  was  held,  that 
fitt  V.  Moffitt,  69  111.  641.  the  proceeding  is  in  rem  and  not  ad- 

27  The  necessity  for  a  sale  is  not  a  versary,  and  that  the  administrator 
matter   for   the   administrator   or   ex-  represents  the   land. 

ecutor  to  determine,  but  is  a  conclu-  29  Grayson  v.  Weddle,  63  Mo.  523 ; 

sion  which  the  court  must  draw  from  Botsford  v.  O'Connor,  57  111.  79.    The 

facts   stated,    and    the   petition   must  text  states  the  rule  as  usually  under- 

furnish   materials   for   the   judgment:  stood,   of   course,   jurisdiction   in   the 

Pryor  v.  Downey,  50  Cal.  398 ;  Ethell  court   pronouncing   a   decree    of    sale 

V.  Nichols,  1  Idaho   (N.  S.)   741.  does   not   rest   upon   the   petition  nor 

28  Morris  v.  Hogle,  37  111.  150;  the  averments  of  pleadings  but  upon 
Hoard   v.    Hoard,   41   Ala.    590;    Guy  the   existence   of   substantive   facts. 

V.  Pierson,  21  Ind.  18;  Fiske  v.  Kel-  sO  Fiske   v.   Kellogg,   3    Oreg.    503; 

logg,   3   Oreg.   503.    This   is   contrary       Clark  v.  Thompson,  47  111.  25;  Israel 
to   the   doctrine   stated    in    Grignon'a      v.  Arthur,  7  Col.  8. 
Lessee  v.  Astor,  2  How.  (U.  S.)  319, 
Warvelle  Abstracts— 33 


514  ARSTRACTS   OF    TITI.E.  [§  493 

1m'  iippoiiitft-l,  should  tlicy  liavc  no  {^.'iiarduiiis,  or  if  having  j;uariliaiis 
they  fail  to  apjjt'ar.^^  Tlio  mrthod  of  citation  is  statutory,  l)Ut,  as  a 
rule,  contemplates  a  jjeiieral  notice  by  pul)lication  and  a  personal 
service  on  all  persons  interested,  if  within  the  jurisdiction  of  the 
court,  and  if  the  proofs  show  an  insutlfieient  service  or  publication, 
the  subsequent  proceedings  are  fatally  defective.^^ 

§  494.  Abstract  of  Probate  Sales.  Sales  by  an  executor  or  ad- 
ininistrator  may  be  shown  in  connection  with  the  settlement  of  the 
decedent's  estate,  or  as  independent  exhibits.  Where  a  former 
abstract  shows  the  death  of  the  decedent,  probate  of  his  estate,  etc.. 
and  a  sale  of  all  or  a  portion  of  the  land  of  such  decedent  occurs 
during  a  subsequent  examination  or  continuation,  no  necessity 
exists  for  re-exhibiting  the  probate  proceedings,  and  the  abstract 
of  the  sale  commences  wdth  the  tiling  of  the  petition.  Where  the 
examination  is  original,  sufficient  of  the  action  of  the  probate  court 
must  be  given  to  show  the  facts  of  death,  application  for  probate, 
appointment  of  administrator,  and  proof  of  heirship,  in  case  of 
intestate  estates;  and  of  probate  of  will,  letters  testamentary  and 
devisees,  in  case  of  testate  estates.  Examples  of  probate  of  wills  will 
he  found  in  the  chapter  on  wills,  and  of  the  probate  of  intestate 
estates  in  the  chapter  on  descents;  a  probate  sale  in  either  case 
would  be  shown  somewhat  as  follow^s,  making  due  allowance  for 
the  minor  differences  which  must  appear  between  testacy  and  in- 
testacy : 

Probate  Court  of  Cook  County,  III. 
Probate  Sale. 
Samuel  M.  Henderson,  ad-  ]       Petition   of   Samuel   M.   Hender- 
ministrator    of    the    Es-   j    so7i,    administrator    aforesaid,    filed 
tate   of  Natlian  Adams,   j    July  6, 1881. 

deceased,  j       Represents  (among  other  things) 

vs.  I    that  the  personal  estate  of  deceased 

Charles  W.  Adams,  Henry  ^  is  insufficient  to  pay  claims 
S.  Adams,  Mary  E.  |  against  said  estate  in  the  sum  of 
Adorns,  widow  of  Na-  |  ^1,000.00,  besides  the  cost  of  ad- 
t  h  a  n  A  d  a  m  s  ,  and  |  niinistration.^^  That  deceased  died 
Thomas  R.  Smith.  j    having  a  claim  and  title  to  the  fol- 

lowing   described   real    estate:    [de- 

SlFiske    v.   Kellogg,    3    Oreg.    503.  32  Blodget    v.    Hitt,    29    Wis.    1G9; 

The   omission   to   make   the   guardian  Mohr  v.  Tulip,  40  Wis.  66;  Sibley  v. 

of  the  minor  heirs  or  devisees  a  party.  Waffle,    16    N.    Y.    180;    Botsford    v. 

can  not  be  taken  advantage  of  in  a  O'Connor,  57  111.  72. 

collnteral      proceeding:       Harris      v.  33  This  is  the  vital  part  of  the  peti- 

Lester,  80  111.  307.  tion,  for  a  sale  of  land  to  pay  debts 


§  494]  JUDICIAL    AND   EXECUTION    SALES.  515 

seribing  the  same.]  That  said  deceased  left  surviving  Mary  E. 
Adams,  his  widow,  having  a  dower  interest  in  his  real  estate;  and 
Charles  W.  Adams,  and  Henry  8.  Adams,  his  children,  his  only 
heirs  at  law.  That  Henry  S.  Adams  is  a  minor  and  has  no  guar- 
dian. That  Lot  22,  Block  14,  [etc.,]  is  now  occupied  by  and  in  the 
possession  of  Thomas  R.  Smith. 

Prays  that  a  guardian  ad  litem  may  he  appointed  for  said  minor 
heir,  and  that  the  Court  will  order  and  direct  said  petitioner  to 
sell  the  said  real  estate  or  so  much  as  may  he  necessary  to  pay 
said  deficiency. 

Sworn  to  July  6,  18^1. 

Sunvmons  issued,  dated  July  6,  1881,  to  all  of  said  defendants, 
returnahle  on  the  3d  Monday  of  July,  1881. 

Summons  returned  indorsed  as  follows:^*  [In  a  necessary  case 
set  out  the  return.] 

Order  entered  July  25,  1881,  appointing  Charles  Anderson 
guardian  ad  litem  for  said  minor  defendant. 

Answer  hy  said  defendants  and  said  minor  defendant  by  his 
guardian  ad  litem,  and  reply  thereto,  filed  Jidy  25,  1881.^^  [Note 
default,  if  any]. 

Decree  entered  July  25,  1881.  (Record  2  of  decrees,  page  49.) 
[Set  out  the  decree  or  the  substance  of  same]. 

Administrator's  report  of  sale  filed  Sept.  22,  1881.^^ 

is  never  allowed  until  the  personal  diction  of  the  subjeet-matter  by  the 
property  has  been  exhausted;  this  filing  of  a  petition,  and  of  the  per- 
statement  is  therefore  a  jurisdictional  sons  of  infant  defendants  by  the  pub- 
fact:  Foley  V.  McDonald,  46  Miss.  lication  of  notice,  a  failure  to  ap- 
238;  Diversy  v.  Johnson,  93  111.  547.  point    a    guardian    ad    litem,    or   his 

34  The   return   of   process   in  every  failure  to  answer,  will  not  defeat  the 

action   furnishes   the   proof   of   juris-  jurisdiction:     Gage   v.   Schroeder,    73 

diction   over   the   person,   and    in   all  111.  44. 

cases    of    default    or    non-appearance  36  It   is   not   usual   to   abstract   the 

of  any  of  the  parties  the  method  of  i-eport  of  sale,  but  where  the  record 

service  is  invariably  to  be  shown  by  is  silent  on  vital  points  or  no  evidence 

a    transcript   of   the    officer's   return.  appears    of    statutory    essentials,    as. 

Unless  parties  are  brought  before  the  of  posting   notices   of   sale,   or  other 

court    in    the    manner    provided    by  necessary  incidents,  statements  under 

statute,   the   court  acquires   no   juris-  oath   in   a   report   of   sale   have   been 

diction    over   them.      Donlin    v.    Het-  lield    sufficient   in    collateral   proceed- 

tinger,  57  111.  348.    Where  all  parties  ings :     Woods    v.    Monroe,    17    Mich, 

have  appeared  this  becomes  of  minor  238.     In  such  cases  the  recitals  of  the 

importance,  and  a  brief  statement  of  report     become     necessary     to     show 

the  fact  of  service  without  disclosing  validity,  and  should  find  appropriate 

the  method  is  sufficient.  mention. 

36  If  the  court  has  acquired  juris- 


516  ARSTBACTS   OF   TITLE.  [§  494 

h'epresoits,  that  in  piirsuauce  of  a  decree,  etc.,  [set  out  tho  sub- 
stam-e  of  the  report].    Sworn  to,  Sept.  19,  188.1. 

Attached  to  the  report  of  sale  and  filed  therewith,  is  proof  of 
publication  and  posting  notices  of  sale. 

Printed  copy  of  notice  of  sale  gives  title,  etc.^'' 

Administrator's  report  of  sale  approved  and  sale  confirmed, 
Sept.  J:?,  1881. 

37  Sec   §477   for  abstract  of  notice 
of  sale. 


CHAPTER   XXVIII. 


ACTIONS  AND  PROCEEDINGS. 


§  495.  Chancery  proceedings.  §  507. 

§  496.  Authority   and   jurisdiction   of  §  508. 

chancery  courts.  §  509. 
§  497.  Authority   and   jurisdiction   of 

probate  courts.  §  510. 

§  498.  Actions  and  proceedings  to  be  §  511. 

noticed.  §  512. 

§  499.  Jurisdiction  the  great  essential.  §  513. 

§  500.  Notice    afforded    by    chancery  §  514. 

records.  §  515. 

§  501.  Process.  §  516. 

§  502.  Formalities  of  a  summons.  §  517. 

§503.  Service.  §518. 

§  504.  Proof  of  service.  §  519, 

§  505.  Affidavit  and  order  of  publica-  §  520. 

tion.  §  521, 
§  506.  Appearance  without  process. 


Master's  and  referee's  reports. 
Verdicts. 

Abstract   of  chancery  proceed- 
ings. 
Injunctions. 
Ejectment. 
Quia  timet. 
Partition. 

Specific  performance. 
Eedemption. 
Foreclosure. 
Dower. 
Divorce. 

Eight  of  eminent  domain. 
Proceedings  for  condemnation. 
Construction  of  wills. 


§  495.  Chancery  Proceedings.  In  the  compilation  of  abstracts 
the  general  name  of  "Chancery  Proceedings"  has  been  given  by 
examiners  to  all  classes  of  actions  that  operate  directly  upon  the 
land  and  culminate  in  judgments  in  rem.  And  while  it  is  un- 
doubtedly true  that  the  proper  tribunals  for  the  trial  of  land  titles 
are  the  common  law  courts,  and  that  equitable  jurisdiction  is  only 
invoked  when  the  law  is  inadequate  to  give  relief,  yet  the  common 
law  actions  respecting  land  have  to  a  great  extent  been  abolished, 
or  superseded  by  statutory  remedies  of  the  same  nature  but  based 
upon  equitable  principles.^    In  many  States  no  separate  chancery 


1  The  State  of  New  York,  in  1848, 
passed  an  act  "to  simplify  and 
abridge  the  practice,  pleadings  and 
proceedings"  of  the  courts  of  that 
State,  whereby  the  then  existing  forms 
of  actions  and  pleadings  in  common 
law  cases  were  abolished ;  the  dis- 
tinction between  legal  and  equitable 
remedies  abrogated;  and  a  uniform 
course  of  proceedings,  in  all  cases, 
was  established.     The  State  of  Ohio 


some  years  later  followed  the  example 
of  New  York,  and  the  codes  thus 
formulated  by  these  two  States,  have 
been  made  the  basis  of  the  procedure 
of  a  number  of  other  States.  In  some 
States  the  ancient  practice  is  still 
retained,  but  in  a  greatly  modified 
form,  and  the  distinction  between 
legal  and  equitable  remedies  pre- 
served, though  both  remedies  are  ad- 
ministered in  the  same  court. 


517 


518  ARSTRACTS   OP   TITLE.  [§  495 

jurisdiction  exists  and  the  law  courts  are  authorized  to  exercise 
chancery  powers  and  administer  equitable  relief  in  all  eases  brought 
before  them,  and  to  adjust  the  claims  of  the  parties  litigant  accord- 
ing as  the  right  may  appear  without  reference  to  the  technical  rules 
applying  to  either  jurisdiction.*  The  common  law  actions  respect- 
ing title,  in  such  courts,  are  regarded  rather  as  equitable  than  legal 
proceedings,  and  equitable  defenses  are  permitted,  while  the  judg- 
ment of  the  court  adapts  itself  to  equitable  methods  in  disposing  of 
the  rights  of  the  parties.'  This  chapter  will  be  devoted  to  a  gen- 
eral review  of  all  legal  actions  respecting  laud  which  partake  of 
an  equitable  nature  and  to  such  actions  as  are  strictly  within  the 
equity  jurisdiction. 

§  496.  Authority  and  Jurisdiction  of  Chancery  Courts.     The 

primary  object  of  courts  of  equity,  is,  to  supply  defects  in  the  ad- 
ministration of  justice  in  the  ordinary  courts,  assuming  the  power 
of  enforcing  the  principles  upon  which  the  ordinary  courts  decide, 
when  the  powers  of  those  courts  or  their  modes  of  proceeding  are 
insufificieut  for  the  purpose;  to  prevent  these  principles,  when  en- 
forced by  the  ordinary  courts,  from  becoming,  contrary  to  the  pur- 
pose of  their  original  establishment,  instruments  of  injustice ;  and 
to  decide  on  principles  of  universal  justice,  when  the  interference  of 
a  court  of  judicature  is  necessary  to  prevent  a  wrong,  and  the  posi- 
tive law  is  silent.*  Courts  of  equity  also  administer  to  the  ends 
of  justice  by  removing  impediments  to  the  fair  decision  of  a  ques- 
tion in  other  courts,  by  providing  for  the  safety  of  property  in 
dispute  pending  a  litigation,^  by  restraining  the  assertion  of  doubt- 

2 Troost  V.  Davis,  31  Ind.  34.  When  action,"    the    established    principles 

the  legal  title  alone  is  in  question  it  pertaining  to  each  branch  of  the  law 

needs  no  support  from   equities,  but  are  still  intact  and  of  binding  force 

stands      impregnable      in      its      own  and  eflScacy.    The  only  true  difference 

strength  and  is  presumed  to  embrace  between  the  new  and  old  systems  is  in 

all   equities.      Proof    of   equities   be-  the    practical    application    of    those 

comes  important  when  the  legal  title  principles:     Rubens  v.  Joel,  3  Kern, 

is  defective,  or  when  it  is  proposed  488;  Scovill  v.  Griffth,  2  Kem,  515; 

to   assail  it:    Shaw  v.   Chambers,   48  Rozierz  v.  Van  Dam,   16  Iowa,   175. 

Mich.  355.  See  Meyers  v.   Rasback,  4  How.    (N. 

8  The    codes    of    procedure    which  Y.)    83;    Giles  v.   Lyon,   4   Com.    (N. 

abolish  all   distinction  between   legal  Y.)   600. 

and   equitable   remedies,   endeavor   to  4  Whitney   v.   Roberts,   22   Til.   381 ; 

blend  them  into  one  system,  combin-  Long  v.  Barker,  85  111.  431  ;  Bennett 

ing,    or    professing    to    combine,    the  v.    Nichols,    12    Mich.    22 ;    Mears    v. 

principles  peculiar  to  each,  but  though  Howarth,   34   Mich.   19. 

the   only   form   of   a   suit   recognized  5  Mclntyre  v.  Storey,  80  111.  127. 
by  them  is  that  known  as  the  "civil 


§  497]  ACTIONS   AND   PROCEEDINGS.  519 

ful  rights  ill  a  manner  productive  of  irreparable  damage,^  by  pre- 
venting injuiy  to  a  third  person  from  the  doubtful  title  of  others,' 
and  bj^  putting  a  bound  to  vexatious  and  oppressive  litigation,  and 
preventing  unnecessary  multiplicity  of  suits ;  '  and  without  pro- 
nouncing any  judgment  on  the  subject,  by  compelling  a  discovery 
virhich  may  enable  other  courts  to  give  their  judgment;  and  by  pre- 
serving testimony,  when  in  danger  of  being  lost,  before  the  matter 
to  which  it  relates  can  be  made  the  subject  of  judicial  investiga- 
tion.® In  one  way  and  another  the  exercise  of  this  jurisdiction 
often  affects  the  title  to  land. 

§  497.  Authority  and  Jurisdiction  of  Probate  Courts.  The  pro- 
bate courts  of  the  United  States  are  courts  of  special  and  limited 
jurisdiction,  deriving  all  their  authority  from  the  statute.^**  But 
while  the  scope  of  their  jurisdiction  is  restricted  they  can  in  no 
proper  sense  be  regarded  as  inferior  tribunals,  as  is  sometimes 
asserted,  and  their  judgments,  within  the  sphere  of  their  authority, 
are  not  distinguishable  from  the  determinations  of  other  courts. 
They  possess  original  and  frequently  exclusive  jurisdiction  in  all 
matters  pertaining  to  the  settlement  of  estates  of  deceased  per- 
sons,^^  which  jurisdiction  continues  so  long  as  there  Is  any  occasion 
for  its  exercise,  and  until  there  has  been  a  full  and  complete  settle- 
ment and  distribution.^^  They  also  possess,  so  far  as  may  be  neces- 
sary, a  portion  of  the  equitable  powers  exercised  by  a  court  of 
chancery,*^  and  are  not  confined  to  the  technical  rules  of  common 
law  in  opposition  to  established  chancery  principles.^*     They  are 

6  Bennett  v.  McFadden,  61  111.  334 ;  court  of  chancery  in  the  settlement 
Prim  V.  Eaboteau,  56  Mo.  407.  of  estates  is  usually  confined  within 

7  Scott  V.  Moore,  3  Scam.  (111.)  the  narrowest  limits,  and  has  gone 
306.  upon  the  ground  merely  of  aiding  the 

8  Scott  V.  Moore,  3  Scam.  (111.)  jurisdiction  of  the  probate  court  in 
306;  Imp.  Fire  Ins.  Co.  v.  Gunning,  those  points  only  wherein  its  functions 
81  111.  236;  Beatty  v.  Dixon,  56  Cal.  and  powers  are  inadequate  to  the 
619;  Third  Ave.  E.  E.  Co.  v.  Mayor,  purposes  of  perfect  justice,  retain- 
etc,  54  N.  Y.  159.  ing  its  ancillary  jurisdiction  to  the 

9  Mit.  PI.  3 ;  1  Smith 's  Chan.  same  extent  over  matters  in  the  pro- 
Prac.  2.  bate  court,  which   it  has  over  those 

10  Hendrick  v.  Cleveland,  2  Vt.  392 ;  in  the  common  law  courts :  Adams  v. 
Propst  V.  Meadows,  13  111.  157.  Adams,  22  Vt.  50;  Heustis  v.  John- 

11  A  court  of  chancery  may,  in  the       son,  84  111.  61. 

exercise    of    its    general    jurisdiction  iZKeeler  v.  Keeler,  39  Vt.  550. 

take   upon   itself   the   administration  13  Bennett  v.  Whitman,  22  111.  448 ; 

of  estates,  and  thus,  in  a  particular  Appeal  of  Schaeffner,  41  Wis.  260; 

case,  supersede  the  jurisdiction  of  the  Brooks  v.  Chappel,  34  Wis.  405. 

probate  court:    Freeland  v.  Dazey,  25  14  Eobinson  v.  Swift,  3  Vt.  283. 
m.   294;    but   the   interference   of   a 


520  ARSTRACTS   OP   TITLE.  [§  497 

ordinarily  courts  of  record  ui)on  the  administration  of  estates,  or 
other  matters  over  which  they  possess  a  general  jurisdiction,  and 
as  liberal  intendments  are,  or  should  be,  made  in  their  favor,  as  are 
extended  to  the  proceedings  of  the  circuit  court. ^*  Their  juris- 
diction in  no  State  extends  to  controversies  respecting  the  title  to 
land,  but  the  peculiar  nature  of  the  matters  entrusted  to  their 
charge  makes  their  judgments  and  decrees  of  controlling  efficacy 
in  the  decision  of  questions  relative  to  title,  which  may  arise  in 
other  courts. 

§  498.  Actions  and  Proceedings  to  be  Noticed.  The  actions  and 
proceedings  that  call  for  special  notice  on  the  part  of  the  examiner, 
are  such  as  relate  to  the  recovery  of  specific  real  property,  or  the 
possession  thereof,  called  ejectment ;  ^^  actions  and  proceedings  for 
partition;"  foreclosure  of  liens"  and  mortgages;  bills  to  quiet 
title;  actions  brought  to  enforce  the  specific  performance  of  land 
contracts ;  proceedings  under  the  right  of  eminent  domain ;  suits 
for  dower;  and  incidentally^  such  bills,  actions,  or  proceedings  as 
from  their  nature  may  operate  as  Us  'pendens.  All  the  proceedings 
specially  enumerated,  whether  pending  or  closed  by  decree,  should 
be  carefully  scrutinized  and  stated  in  the  abstract  with  a  reason- 
able degree  of  detail.  The  decree  entered  in  these  matters,  when 
followed  by  deed,  is  the  foundation,  for  such  deed,  and  of  equal 
dignity  with  it,  while  the  anterior  proceedings  go  to  establish  the 
validity  of  the  decree.  In  addition  to  those  matters  of  exclusive 
cognizance  in  the  circuit  court,  the  examiner  will  also  show  all 
proceedings  in  the  county  (probate)  courts  that  incidentally  affect 
title,  by  reason  of  the  relation  of  the  parties  to  the  subject-matter. 
In  this  way  matters  relating  to  adoption,  guardianship,  etc.,  will 
frecineiitly  appear,  as  well  as  assignments  of  dower,  homesteads,  etc. 

§  499.  Jurisdiction  the  Great  Essential.  The  validity  of  all 
decrees,  as  well  as  sales  and  conveyances  which  may  result  from 

15  Grignon  v.  Astor,  2  How.  (U.  17  Partition  is  also  a  coniniou  law 
S.)  319;  Propst  v.  Meadows,  13  111.  action:  Hopkins  v.  Medley,  97  III. 
157;  Moreland  v.  Lawrence,  23  Minn.  402;  but  partakes  of  many  equitable 
84;  Barker  v.  Barker,  14  Wis.  131;  qualities,  and  equity  has  jurisdiction 
Ostrom  V.  Curtis,  1  Cush.  460.  as  well  as  law  courts:   Hess  v.  Voss, 

16  Ejectment     is     a     common     law  52  HI.  472. 

remedy,  but  the  statutory  action  sub-  18  A  suit  to  enforce  a  mechanic's 

stituted   in  many  States  is  equitable  lien,   although    statutory,   is   substan- 

in  its  nature,  and  in  at  least  one  State  tially   a   chancery  proceeding,  and   is 

the  action  is  a  substitute  for  a  bill  in  governed    by    the   chancery    practice: 

equity.  McGraw  v.  Bayard,  96  111.  146. 


§  500]  ACTIONS   AND   PROCEEDINGS.  521 

them,  depends  on  the  jurisdiction  of  the  court,^^  and  this  has  refer- 
ence both  to  the  parties  and  the  subject-matter.  Both  of  these  par- 
ticulars must  satisfactorily  appear  in  the  abstract,  and  are  shown 
in  the  one  case  by  a  statement  of  the  return  of  the  summons,  the 
method  of  service  being  also  given  where  greater  certainty  is  de- 
sired, and  in  the  other  by  a  synopsis  of  the  bill,  answer,  and  other 
pleadings.  The  decree  in  all  instances  must  conform  to  the  process 
and  allegations,  i.  e.,  to  the  parties  in  the  action  and  the  matter 
recited  in  the  pleadings.^©  It  will  therefore  be  seen  that  a  correct 
rendering  of  the  commencement  of  the  action;  statement  of  facts 
constituting  the  subject-matter;  and  a  full  presentation  of  the  ad- 
judication made  thereon,  are  the  only  matters  of  prime  considera- 
tion on  the  part  of  the  examiner,  and  when  these  several  mat- 
ters show  apparent  regularity  and  a  just  correspondence  in  all 
their  parts,  correct  and  satisfactory  opinions  may  be  predicated 
upon  them,  even  though  minor  details  may  have  been  neglected, 
and  positive  error  is  shown  by  the  record. 

Where  it  appears  from  the  whole  record  that  the  court  had 
no  jurisdiction  over  the  person  or  subject-matter  the  judgment 
is  void.  By  jurisdiction  is  meant  the  right  to  adjudicate  con- 
cerning the  subject-matter,''^  and  by  subject-matter  is  meant 
' '  the  nature  of  the  cause  of  action  and  of  the  relief  sought. ' '  ^^ 
A  court  may  be  said  to  have  jurisdiction  of  the  subject-matter 
of  a  suit  when  it  has  the  right  to  determine  the  issue  between 
the  parties  or  grant  the  relief  prayed.  The  issue  is  determined 
from  the  pleadings.  When  the  court  has  cognizance  of  the  matter 
as  it  appears  from  the  pleadings,  and  has  the  parties  before  it, 
then  the  judgment  or  decree  which  is  authorized  by  the  pleadings, 
however  erroneous,  irregular  or  informal  it  may  be,  is  valid  until 
set  aside  or  reversed  on  appeal. ^^ 

§  500.  Notice  Afforded  by  Chancery  Records.  It  is  a  funda- 
mental rule  in  equity  that  purchasers  are  directly  affected  by  every 
matter  or  circumstance  concerning  the  title  to  the  property  they 
take,  which  affirmatively  appears  from  the  proceedings  or  decrees 
of  courts  of  competent  jurisdiction,  in  actions  relating  to  such  prop- 

19  Weidersum  v.  Naumann,  62  How.  21  Maunday  v.  Vail,  34  N.  J.  L.  422. 

(N.   Y.)    Pr.   369;    Campbell   v.    Me-  22  Cooper    v.     Keynolds,     10    Wall 

Cahan,  41   111.  45.  (U.  S.)   316. 

20Slocuni    V.    Sloeum,    9    111.    App.  23  Hope  v.  Blair,  105  Mo.  85;  Lan- 

418.     Thus,   one  case  can   not  be  al-       caster  v.  Wilson,  27  Gratt.  (Va.)  624. 
leged  and  another  proved:    Meredith 
V.  Little,  6  Lea   (Tenn.)   521;   Park- 
hurst  V.  Race,  100  111.  207. 


522  ARSTRACTS   OP   TITLE.  [§  500 

crty,  wlietlicr  siu-h  purchasers  have  actual  notice  or  not.^*  It  is 
the  applicatioii  of  this  rule  which  renders  necessary  a  searching 
investigation  of  the  court  rolls  whenever  real  property  is  sold,  for 
every  man  is  presumed  to  be  cognizant  of  what  transpires  in  the 
courts  of  justice,  and  the  law  will  charge  him  with  actual  notice 
of  whatever  there  occurs,  which  affects  the  merits  of  the  title  he 
would  take.^**  This  rule,  which  has  always  been  considered  a  hard 
one,*^  is  not  a  favorite  with  the  courts,  who  are  ever  inclined  to 
limit  its  application,  and  it  will  not  be  extended  to  embrace  col- 
lateral matters,  or  matters  not  specifically  mentioned  in  the  bill  or 
decree.^"^  "In  the  investigation  of  titles,"  says  Mulkey,  J.,  "pur- 
chasers look  for  decrees  and  judgments  against  those  who  appear 
of  record  to  have  been  owners,  and  when  it  is  ascertained  that  a 
particular  decree  or  judgment  does  not  affect  the  title  which  is 
the  object  of  inquiry,  it  is  believed  not  to  be  customary  to  look 
further ;  and  to  hold  that  purchasers  are  affected  with  constructive 
notice  of  every  fact  relating  to  the  purchased  estate  that  may 
happen  to  appear  in  some  of  the  files  of  a  case,  and  not  elsewhere, 
would,  in  our  judgment,  be  carrying  the  doctrine  of  constructive 
notice  to  a  dangerous  extent.  The  establishment  of  such  a  rule 
would  have  a  direct  tendency  to  unsettle  titles,  for  no  one  could 
know  of  a  certainty  when  he  was  getting  a  good  title,  without  ex- 
amining the  files  in  every  case  in  the  county  where  the  land  laj^ 
and  this  would  be  wholly  impracticable.  We  hold,  therefore,  pur- 
chasers are  not  bound  to  look  beyond  the  judgment  or  decree,  and 
the  legal  effect  it  may  have  on  the  title  w^hich  is  the  subject  of  in- 
quiry." ^* 

§  501.  Process.  Equity  suits  are  commenced  by  the  filing  of  a 
1)111  or  petition  in  the  office  of  the  clerk  of  the  court  in  which 
the  action  is  brought,  which  bill  contains  a  statement  of  the  facts 


»4Leitcli  V.  Wells,  48  N.  Y.  585;  MHayden    v.    Bucklin,    9    Paige, 

Jackson  v.  Warren,  32  111.  331;  Her-  572. 

sey    V.    Turbett,    27     Pa.    St.  418;  27  Dugau   v.    Follett,    100   111.    581. 

Blanchard    v.    Ware,    37    Iowa,  305;  28  Dugan   v.    Follett,    100    111.   581. 

Hunt  V.  Haven,  52  N.  H.  162.  The  This  rule  is  in  consonance  with  the 

same    rule    has    been    frequently    ap-  general     doctrine    that    one     buying 

plied  in  actions  at  law:     See,  Jack-  land,  of  which  the  record  title  is  in 

.son  V.  Tuttle,   9   Cow.    (N.  Y.)  233;  the    grantor,   is   not   bound    by   equi- 

Howard  v.  Kennedy,  4  Ala.  592 ;  Ben-  ties    .stated     in     deeds     unconnected 

nett  V.  Williams,  5  Ohio,  461.  with  the  chain  of  title,  and  of  which 

28  Leitch  v.  Wells,  48  N.  Y.  585 ;  he  is  not  informed.    See  Odle  v.  Odle, 

Fissler's    Appeal,    75    Pa.    St.  483;  73  Mo.  289. 
Loomis  V.  Kiley,  24  111.  307. 


§  502]  ACTIONS   AND   PROCEEDINGS.  523 

constituting  the  complainant's  claim,  and  a  prayer  for  such  relief 
as  he  may  deem  himself  entitled  to.  Upon  the  filing  of  this  bill 
or  petition  process  issues  to  compel  the  appearance  of  the  de- 
fendants. This  is  the  ancient  chancery  procedure,  and  process 
issued  before  the  filing  of  a  bill,  or  service  made  prior  thereto,  is 
a  nullity.^^  The  codes  substitute  a  new  procedure,  by  which  the 
issuance  of  summons  is  made,  in  ordinary  cases,  the  commence- 
ment of  the  action,3°  but  the  law  governing  the  service  of  process 
is  substantially  the  same,  and  the  court  in  either  case  derives  its 
jurisdiction  only  from  a  full  and  technical  compliance  with  the 
statute.  A  discussion  of  practice  is  foreign  to  the  purposes  of  this 
work,  and  in  speaking  of  these  matters  reference  can  only  be  made 
to  the  commonly  accepted  principles  which  are  recognized  by  all 
courts  and  are  applicable  to  all  systems  of  practice,  trusting  that 
the  points  given  will  suggest  others  depending  upon  local  rules  and 
decisions.  The  process  of  a  court  has  vitality,  and  may  be  en- 
forced, anywhere  within  its  jurisdiction,  but  beyond  that  it  is  of 
no  effect.  Hence,  a  service  outside  of  its  jurisdiction  confers  no 
rights  over  the  person  of  the  defendant.^^ 

§  502.  Formalities  of  a  Summons.  It  is  not  necessary  in  the 
abstract  of  court  records  to  set  out  minutely  all  the  papers  and 
files,  and,  as  a  rule,  the  practical  purposes  of  the  abstract  can  be  ac- 
complished by  references  and  partial  statements.  The  summons, 
however,  is  vital,  and  unless  there  has  been  an  appearance,  the 
formal  requisites  are  jurisdictional.^^  When  the  summons,  as 
under  the  old  chancery  practice,  issues  out  of  the  court  where  the 
bill  has  been  filed,  it  must  be  with  proper  venue,^^  for  a  defendant 
has  a  right  to  know  when  and  where  he  is  required  to  appear,  and 
when  the  writ  fails  to  furnish  such  information,  it  is  void.^*     It 

29  story's  Eq.  PI.  §7;  Barton's  32  0rendorff  v.  Stanberry,  20  111. 
Suit  in  Eq.,  39;  Hodgen  v.  Guttery,  89;  Miller  v.  Handy,  40  111.  448; 
58  111.  431.  Garland  v.  Britton,  12  111.  232;  Bese- 

30  This  is  the  procedure  of  the  New  mer   v.   The   People,   15   111.   439. 
York    code    and    all    systems    based  33  Orendorff    v.    Stanberry,    20    111. 
thereon.    This  is  also  the  procedure  in  89.      And    this    rule    has    not    been 
legal  actions  at  common  law.  changed    by    the    codes :      Blanchard 

31Isett  V.  Stuart,  80  111.  404.  In  v.  Strait,  8  How.  (N.  Y.)  84.  The 
some  of  the  States  the  statute  pro-  force  and  effect  of  a  venue  in  a 
vides  for  actual  personal  service  judicial  writing  is  to  indicate  the 
without  the  State,  and  permits  the  county  wherein  the  court  is  act- 
notice  thereby  given  to  supersede  the  ing:  Van  Dusen  v.  People,  78  111. 
necessity  of  publication.  Consult  local  645. 
statutes.  34  Orendorff    v.    Stanberry,   20    111. 


524 


ARSTRACTS  OP   TITLE. 


:§502 


must  run  in  tlie  name  of  tlie  "People"  or  the  " State, "^^  or  it 
is  void,^^  and  must  be  addressed  to  tlie  sheriff  of  the  county  in 
which  tlie  defendant  resides  if  he  be  a  resident  of  the  State.''' 
It  must  correctly  describe  the  parties  to  the  suit,'*  and,  when  re- 
quired by  statute,  the  cause  for  which  it  is  brought,'^  and  must 
be  made  returnable  to  a  particular  term.'*'  When  issuing  from  a 
court  it  must  be  tested  in  the  name  of  the  clerk  "  or  presiding 
judge,*^  and  must  bear  teste  of  the  day  on  which  it  is  issued." 
Where  the  statute  so  provides  it  must  be  issued  under  the  seal 
of  the  court  and  if  not  so  sealed  it  is  void.** 

By  some  of  the  codes,  the  summons  may  be  issued  by  an  attorney 
of  the  court,  and  need  not  be  signed  by  the  clerk  or  judge,  but 
must  be  subscribed  by  the  attorney  who  causes  same  to  issue." 
Wlien  regarded  as  the  direct  mandate  of  the  court,  a  seal  is  in- 
dispensable to  its  validity,"  but  under  the  code  system  this  is 
unnecessary.*' 

§  503.  Service.  To  bind  a  person  by  a  judicial  sentence  he  must 
be  a  pai'ty  to  tlie  preceeding,  and  must  have  either  actual  or  con- 
structive notice  thereof,**  or  enter  his  appearance.*^     These  mat- 


89.  A  code  summons  requiring  the 
defendant  to  serve  a  copy  of  his  an- 
swer upon  "the  subscriber,"  the 
plaintiff's  attorney,  at  a  place  desig- 
nated, is  sufficiently  certain  under 
the  code,  and  confers  jurisdiction: 
Hotchkiss  V.  Cutting,  14  Minn.  537. 
36  Curry  v.  Hinman,  11  111.  420; 
I^fcLendon  v.  State,  92  Tenn.  520,  22 
S.  W.  200,  21  L.  R.  A.  738.  The 
style    is    generally    constitutional. 

36  Ferris  v.  Crow,  5  Gilm.  (111.) 
96. 

37  A  summons  issued  by  the  clerk 
of  one  county,  addressed  to  the 
sheriff  of  another  county,  command- 
infi  liiiii  to  summon  a  defendant  in  his 
county  to  appear  at  Lincoln,  in  said 
county,  is  void:  Gill  v.  Hoblit,  23  111. 
473,  and  see  Kennedy  v.  People,  15 
111.  418.  The  N.  Y.  code  summons  is 
addressed  simply  to  the  defendant. 

88  Richardson  v.  Thompson,  41  111. 
202;   Rogers  v.  Green,  33  Tex.  661. 

39  McDermid  v.  Russell,  41  111.  489 ; 
King  V.  Blood,  41  Cal.  314. 


40  A  summons  returnable  to  the 
wrong  term  confers  no  jurisdiction 
on  the  court  to  render  a  judgment 
in  the  action:  Culver  v.  Phelps, 
130   111.  217. 

41  Norton  v.  Dow,  5  Gilm.  459 ; 
Costly  V.  Driver,  45  Ala.  230;  Wil- 
son V.  Owen,  45  Ala.  451. 

42  Brown  v.  Parker,  15  111.  307; 
Ilowerter  v.  Kelly,  23  Mich.  337. 

43  Brown  v.  Parker,  15  111.  307. 
44Chote  v.  Spencer,  13  Mont.  127, 

32  Pac.  651,  20  L.  R.  A.  424. 

45  See  Howard's  N.  Y.  Code  (1859), 
162.  This  is  the  method  in  most  of 
the  States  which  employ  the  N.  Y. 
code. 

46  Bosemer  v.  Pco])le,  15  111.  439 ; 
]MorriHon  v.   Silverburgh,   13   111.   551. 

47  For  a  brief  period  a  U.  S.  Rev. 
stamp  was  required  on  all  process,  but 
this  law  was  repealed  March  2,  1867; 
see  14  U.  S.  Stat,  at  Large,  475. 

48  Borders  v.  Murphy,  78  111.  81; 
Kasterly  v.   Goodwin,  35   Conn.   273. 

49  Barker  v.  Ins.  Co.,  24  Wis.  630. 


§  503]  ACTIONS  AND  PROCEEDINGS.  525 

ters  are  jurisdictional,  and  where  the  service  of  the  summons  is 
insufficient  to  confer  jurisdiction,  the  judgment  or  decree  as  to  the 
defendants  is  a  nullity,^''  and  open  to  attack  in  all  collateral  pro- 
ceedings.^^ The  return  of  the  officer  serving  the  process  must  show 
strict  compliance  with  the  statute,  before  the  court  can  obtain 
jurisdiction  of  the  person,''^  and  this  has  reference  both  to  the 
time,  the  manner,  and  the  person  on  whom  the  service  was  made.^' 

When  personal  service  can  not  be  made,  by  reason  of  the 
absence  of  the  defendant,  or  because  he  can  not  be  found,  a  sub- 
stituted service  is  prescribed  by  statute,"  but  in  making  this 
service,  as  well  as  in  case  of  constructive  service  by  publication, 
where  the  defendant  is  a  non-resident,  the  requirements  of  the 
statute  must  all  be  strictly  complied  with,  and  this  must  affirma- 
tively appear  on  the  record.^^  Service,  or  constructive  notice,  by 
publication,  was  only  obtainable  formerly  on  the  return  of  process 
non  est  inventus,  and  such  is  still  the  rule  in  some  States,  but 
ordinarily,  where  an  affidavit  of  non-residence  has  been  filed  a  con- 
structive service  by  advertisement  may  be  obtained.** 

In  all  cases  of  constructive  service  the  statute  must  be  strictly 
pursued,  and  as  the  affidavit  of  non-residence  constitutes  the  basis 
of  an  order  of  publication,  whenever  such  order  is  required,  it  is 
essential  that  such  affidavit  should  appear  of  record,"  and,  as  a 

60Botsford    V.    O 'Conner,    57    111.  Dyer,  7  Bush  (Ky.),  505;  MuUins  v. 

72.  Sparks,  43  Miss,  129. 

61  Haywood  v.  Collins,  60  111.  328.  66  By  statute,  in  most  of  the  States, 

The  mere  fact  that  a  defendant  had  a  substituted  service  may  be  made  by 

actual   knowledge    of   the   commence-  leaving    a    copy    at    the    defendant's 

ment  of  an  action,  in  itself,  gives  the  "usual  place  of  abode,"  with  some 

court  no  jurisdiction  over  him.     Stal-  person  of  suitable  age  and  discretion 

lings    V.    Stallings,    127    Ga.   464,    56  to  whom  the  contents  of  the  summons 

S.  E.  469,  9  L.  R.  A.  (N.  S.)  593.  is    explained.     By   "usual   place    of 

52  Cost  V.  Eose,   17   111.  276 ;    Par-  abode, ' '    is    meant    the    defendant  'a 

don  V.  Dwire,  23  111.  572;  People  v.  fixed  residence  at  the  time  of  service. 

Bernal,  43  Cal.  385.  Berryhill  v.  Sepp,  106  Minn.  458,  119 

63Botsford    v.    O 'Conner,    57    111.  N.    W.    404,    21    L.    R.    A.    (N.    S.) 

72;     Hoehlander    v.    Hochlander,    73  344. 

111.    618;    Mack    v.    Brown,     73     111.  56  Millett    v.    Pease,    31     111.    377; 

295;     Eankin    v.    Dulaney,    43    Miss.  Tibbs  v.  Allen,  27   111.  119;   Coons  v. 

197 ;     York    v.    Crawford,    42    Miss.  Throckmorton,  2a  Ark.  60. 

508;     Hendley    v.    Baccus,    32    Tex.  67  Bardsley     v.     Hines,     33     Iowa, 

328;   Vandiver  v.   Roberts,  4  W.  Va.  157;      Merrill     v.     Montgomery,     25 

493;    Mclvin   v.    Clark,    45    Ala.    285.  Mich.     73;     Byrne     v.     Roberts,     31 

54  Boy  land  v.  Boyland,  18  111.  551;  Iowa,    319;    Coons    v.    Throckmorton, 

Miller  v.  Mills,  29   111.  431;  Wells  v.  25    Ark.    60;     Millett    v.    Pease,    31 

Stumph,     88     111.     56;     Williams     v.  111.    377.      In    this    case,    while    hold- 

Downes,    30    Tex.    51 ;    Brownfield    v.  ing  the   affidavit   to   be   the   basis   of 


526  ARSTBACTS   OP   TITLE.  [§  503 

matter  of  course,  be  properly  exhibited  in  the  abstract  in  connec- 
tion witli  the  order  of  pn])lioation,*'  notice,  and  publisher's  proof 
of  publication. 

It  is  now  generally  conceded  that  the  State  possesses  the  power 
to  provide  for  the  adjudication  of  land  titles  within  its  limits,  as 
against  non-residents  who  are  brought  into  court  only  by  publica- 
tion, and  decrees  based  on  such  constructive  service  are  as  valid 
and  effectual  as  if  rendered  with  the  parties  actually  appearing. ^^ 
Hut  this,  as  a  rule,  applies  only  to  actions  in  rem.  A  court  has 
no  jurisdiction  to  enter  a  personal  judgment  against  a  non-resi- 
dent, constructively  served,  who  has  made  no  appearance  in  the 
action.^® 

§  504.  Proof  of  Service.  The  service  of  a  summons  is  ordinarily 
proved  by  the  return  of  the  sheriff  or  other  person  serving  it,^^ 
or  by  the  admission  of  the  person  so  served,^^  but  in  all  cases  where 
the  record  shows  an  appearance  of  the  defendant,  this  becomes  a 
matter  of  minor  importance,  for  a  general  appearance  is  an  ad- 
mission on  the  part  of  the  defendant  that  he  has  been  regularly 
brought  into  court,  and  subjects  him  to  the  jurisdiction  thereof.^^ 
In  such  cases  it  would  seem  that  a  passing  reference  to  the  issuance 
and  service  of  summons  would  be  sufficient,  though  many  attor- 
neys require  a  synopsis  or  full  transcription  of  the  officer's  re- 
turn, particularly  in  the  case  of  infants,  lunatics,  and  persons 
under  disability,  when  the  appearafice  is  by  guardian.    But  where 

the  order,  it  is  yet  held,  that  where  1000;  Silver  Camp  M.  Co.  v.  Dickert, 

the  record  shows  a  notice  by  publi-  31  Mont.  488,  78  Pac.  967,  67  L.  R.  A. 

cation,    which    recites    the    fact   that  940. 

an  affidavit  was  duly  filed,  but  does  61  No  person  can  execute  a  process 

not  appear  of  record,  the  court  will  in    his    own    favor:       Snydacker    v. 

presume  that  the  affidavit  was  duly  Brown,  51  111.  357.     The  return  of  a 

filed;    and   see  Tompkins  v.  WUtber-  process  server,  if  other  than  an  officer, 

ger,  5~)  IJl.  385.  must  be  under  oath. 

58  A   rule    of   court    providing    for  62  An  admission  of   service   is  not 

publication  on  filing  an  affidavit  of  very   satisfactory  as  evidence.     The 

iion-rcsidcnce  may  take  the  place  of  court    takes    judicial    notice    of    the 

a    formal    order    in    each    case.      It  signatures  of   its   officers  but  is  not 

will    not    be    necessary    to    show    the  presumed  to  know  the  signature  of  a 

rule   in  the  abstract.  party    defendant,    who    has    not    ap- 

69  Perkins    v.    Wakeham,    86    Cal.  peared :     Litchfield  v.  Burwell,  5  How. 

580;     McLaughlin     v.     McCrory,    55  (N.  Y.)  341. 

Ark.  442;   Adams  v.  Cowles,  95  Mo.  63  Dix  v.  Palmer,  5  How.   (N.  Y.) 

501.  233;  Webb  v.  Mott,  6  How.   (N.  Y.) 

60  Gates  v.   Tebbetts,   83   Neb.  573,  439 ;  Barker  v.  Ins.  Co.,  24  Wis.  630 ; 

119  N.  W.  1120;  20  L.  R.  A.  (N.  S.)  Bustamete  v.  Bescher,  43  Miss.  172; 


§  504]  ACTIONS   AND   PROCEEDINGS.  527 

a  plaintiff  undertakes  to  obtain  a  judgment  or  decree  against  a 
defendant,  without  any  appearance  by  the  latter,  either  in  person 
or  by  attorney,  he  is  required  at  his  peril  to  bring  such  defendant 
within  the  jurisdiction  of  the  tribunal  in  which  he  is  suing,  or 
his  proceedings  will  be  set  aside  as  irregular,  and  totally  defective 
and  void.^*  In  the  case  of  joint  defendants  this  matter  is  par- 
ticularly important,  for,  although  the  plaintiff  may  generally  pro- 
ceed against  the. defendants  served,  no  valid  judgment  can  be  ren- 
dered against  those  not  served,  except  that  service  upon  one  mem- 
ber of  a  firm  has,  in  some  instances,  been  held  to  give  the  court 
jurisdiction  over  all  the  members  in  an  action  brought  against 
the  firm.^^  Where  the  service  is  by  publication,  and  defendants 
are  described  by  their  firm  name  only,  it  has  been  held  insufficient 
to  give  jurisdiction  over  the  partners  individually  or  collectively 
where  the  firm  name  does  not  contain  the  full  name  of  each  part- 
ner.^^ 

Whenever,  therefore,  the  record  shows  no  appearance  it  is  ad- 
visable that  all  matters  relating  to  service  be  set  out  minutely  and 
in  detail.  In  case  of  personal  service,  show  the  return  briefly,  but 
always  display  enough  to  show  the  jurisdictional  essentials;  who 
served,  when,  where,  etc.  In  case  of  substituted  service  show  the 
return  entire ;  that  is,  a  literal  transcription.  If  the  service  is 
affected  by  notice  and  publication,  show  a  synopsis  of  the  notice 
and  proof  of  publication.^"''  The  advertisement  in  the  latter  case 
performs  the  same  office  as  process,^*  and  it  is  not  enough  that  the 

Bowiu  V.  Sutherlin,  44  Ala.  278;  Liles  ally  called   in  question:      Harrington 

V.    Woods,    58    Tex.    416;    Abbott    v.  v.  Wofford,  46  Miss.  31. 
Semple,  25  111.  107.  65  Anderson  v.  Arnette,  27  La.  Ann. 

64  Williams  v.  Valkenburg,  16  How.  237.      Yet    service    upon    an    alleged 

(N.  Y.)    144;   Koberts  v.   Stowers,   7  partner,  the  fact  of  partnership  not 

Bush   (Ky.),   295;   Grantern  v.  Eose-  being    established,    does    not    confer 

cierrance,  27  Wis.  488:    A  distinction  jurisdiction     upon     another     alleged 

is    sometimes    made    between   a   total  partner:     Nixon  v.  Downey,  42  Iowa, 

want  of  service  of  process,  and  a  de-  78. 

fective   service,  as   to   their  effect   in  66  Yarbrough    v.    Pugh,    63    Wash, 

judicial  proceedings.     In  the  one  case  140,  114  Pac.  918,  33  L.  R.  A.  (N.  S.) 

a  judgment  or  decree  is  held  to  be  351. 

coram  non  judice  and  void.     In  the  67  Proof  of  the  publication  of  the 

other,  the  defective  service  gives  the  sunmions  for  *  *  six  successive  weeks ' ' 

defendant   actual   notice   of  the   pro-  has  been  held  insufficient  to  show  a 

ceedings  against  him,  and  the  judg-  publication    "once    each    week"    for 

nient  or  decree,  although  erroneous,  is  the   period   named:      See   Godfrey   v. 

valid  until  reversed  by  a  direct  pro-  Valentine,  39  Minn.  336. 
ceeding  in  an  appellate  jurisdiction;  68  Randall    v.    Songer,    16    111.    27; 

and  its  validity  can  not  be  collater-  Church  v.  Fumiss,  64  N.  C.  659. 


528  ABSTRACTS   OF   TITLE.  [§  504 

decree  recites  that  tlu-  defendaut  has  been  duly  served,  or  that  he 
has  been  rej^^ularly  notitiod;  the  record  should  show  process  or 
notice  duly  served  or  published  and  a  dceree  pro  confesao  is  ren- 
dered erroneous  and  invalid  when  these  particulars  arc  wanting.®' 
This  doetrine  has  been  somewhat  modified,  however,  by  later  de- 
cisions and,  generally,  every  reasonable  presumption  will  be  in- 
dulged in  favor  of  the  jurisdiction  of  a  court  whose  decrees  recite 
due  process  and  service,  and  such  recitals  are  generally  held  to 
be  prima  facie  evidence  of  the  jurisdictional  facts."^" 

A  decree  rendered  upon  the  constructive  notice  afforded  by 
publication  is  not  regarded  in  many  States  as  final  or  conclusive 
upon  the  subject  presented  for  considerable  time  after  its  rendi- 
tion, and  is  liable  to  be  vacated,  in  the  interests  of  justice,  where 
application  is  made  in  apt  time,  and  of  these  facts  purchasers  or 
others  dealing  with  the  title  to  land  are  bound  to  take  notice.'^ 

§  505.  Afl5davit  and  Order  of  Publication.  The  statute  author- 
izing constructive  service  by  publication,  in  case  of  non-resident 
or  absent  parties,  requires  certain  facts  to  be  presented  by  affidavit 
to  the  court  in  which  the  action  is  pending,  w^hereupon,  if  such 
presentation  is  satisfactory  to  the  court,  an  order  is  made  for  the 
publication  of  the  summons  or  notice  to  appear,  which  not  only 
prescribes  the  period  but  designates  the  paper  in  which  the  pub- 
lication is  to  be  made,  while  if  the  residence  of  the  defendant  be 
known  such  order  further  provides  for  an  additional  notice  through 
the  mail.  The  service  is  deemed  complete  at  the  expiration  of  the 
time  prescribed  by  the  order  of  publication,  and  the  proof  is  af- 
forded by  the  affidavit  or  certificate  of  the  printer,  and  an  affidavit 
of  deposit  in  the  post  office,  if  such  deposit  has  been  made.''" 

These  preliminaries,  though  often  overlooked  when  compiling  an 
abstract,  are  as  important  as  any  step  in  the  action  and  upon  their 
due  performance  the  validity  of  the  subsequent  proceedings  rests. 
It  is  not  sufficient  to  show  merely  the  affidavit  of  publication,  for, 
although  that  fact  is  an  important  ingredient  of  the  service,  it  is 
comparatively  of  no  force  or  effect  unless  connected  with  the  pre- 
liminary steps  which  occasioned  it.  Publication  of  a  summons  in 
a  newspaper  is  not  service  of  the  summons,  nor  is  an  affidavit  of 

69  Eeddiek  v.  State  Bank,  27  111.  are  usually  of  little  consequence :  Car- 
145.  ter  v.  Kodewold,  108  111.  351. 

70  Turner  v.  Jenkins,  79  111.  228;  71  Southern  Bank  v.  Humphreys, 
Tompkins  v.  Wiltberger,  56  111.  385.  47  111.  227. 

Merc  clerical  omissions,  provirlcd  suffi-  72  This    matter     is     statutory     and 

cicnt  is  shown  to  confer  jurisdiction,       varies  with  locality. 


§  507]  ACTIONS  AND  PROCEEDINGS.  529 

such  publication  proof  of  service.  To  be  of  any  avail  the  pub- 
lication must  have  been  made  in  a  paper  designated  by  the  order 
of  the  court  or  judge  and  for  the  period  prescribed  by  such  order.'^ 
The  terms  of  such  order  must,  therefore,  be  connected  with  the 
affidavit,  or  the  proof  will  amount  to  nothing.''^*  As  the  printer  is 
not  supposed  to  know  anything  of  the  order,  and  is  not  called 
upon  even  to  refer  to  it  in  his  affidavit,  it  becomes  necessary  in 
making  up  the  abstract  to  include  the  substance  of  the  affidavit 
of  non-residence  and  the  order  of  the  court  made  upon  it,  other- 
wise it  will  disclose  no  proof  of  service.  Where  publication  is 
made  pursuant  to  a  general  rule  of  court,  while  the  service  must 
comply  with  the  requirements  of  the  rule,  it  is  not  necessary  to 
set  out  the  rule  itself. 

§506.  Appearance  Without  Process.  A  party  may  enter  his 
appearance  in  a  pending  action  without  service  of  summons,  and 
such  appearance,  voluntarily  made,  either  in  person  or  by  attorney, 
binds  him  with  respect  to  any  judgment  or  decree  that  may  be 
rendered  in  the  case.  Where,  however,  the  appearance  is  by 
attorney  and  without  service  of  process,  this  is  a  fact  that  should 
be  noted,  for  while  all  of  the  presumptions  are  in  favor  of  a  judg- 
ment based  on  such  an  appearance,'^  yet,  if  the  appearance  was  in 
fact  unauthorized  the  judgment  may  be  vacated  on  motion  or  its 
enforcement  enjoined.'''^ 

§507.  Master's  and  Referee's  Reports.  Frequently  during  the 
progress  of  a  cause  a  reference  is  made  to  a  master  or  referee  to 
ascertain  some  particular  fact,  or  for  a  trial  of  the  whole  issue, 
and  the  manner  in  which  the  master  or  referee  presents  his  opinion 
and  the  result  of  his  inquiries  to  the  court,  is  either  by  a  certificate 
or  report.  A  certificate  is  a  simple  notification  of  a  fact,  or  of 
an  opinion,  or  a  conclusion ;  reports  are  the  results  of  his  inquiries 
with  his  findings  or  conclusions,  and  opinions  thereon.'"^  Refer- 
ences are  more  frequently  made  to  state  an  account,  or  for  other 
matters  arising  out  of  commercial  transactions,  but  occasionally 

73  This    is    often    provided    for    by  74  Galpin    v.    Page,    3    Sawyer    (C. 

a  general  rule  of  court  which  stands  f't.))  93. 

for  a  special  order  in  the  particular  75  Corbitt  v.  Tiinniennan,  95  Mich, 

case.       Of     course,     the     publication  581;  Willianis  v.  .Tohnson,  112  N.  C. 

must  comply   with   the  rule;   usually,  424. 

however,  the  publication  may  be  made  76  Winters  v.  Mears,  25  Neb.  241. 

in    any   "secular   newspaper   of   gen-  77  Smith's  Ch.  Prac.  *  161 ;  2  Barb, 

eral  circulation. ' '  Ch.  Prac.  *  544 ;  2  Dan.  Ch.  Prac.  934. 
Warvelle  Abstracts — 34 


530  ARSTRACTS   OP   TITLE.  [§  507 

I'i'fcroiu'cs  of  title  iirc  inaih',  iiiul  ihcso  will  soiiicl iincs  ixMiuirc  notice 
ill  in;ikiii<r  up  a  synopsis  ol'  cliancery  proet'odings.  All  reports, 
upon  which  aiT  founded  decrees  or  decretal  oi'ders,  require  con- 
tiiiiuit ion.  fludicial  sales  are  frequently  conducted  by  a  niastei' 
or  commissioner,  and  a  circumstantial  i-eport  of  such  sale  must  he 
i-(Mul(M-ed  to  and  contii-med  by  the  court  ordering  same,  and  thougli 
it  is  not  usual  to  abstract  this  report,  where  the  decree  and  deed.s 
are  shown,  some  allusion  mu.st  be  made  to  it. 

§  508.  Verdicts.  The  original  chancery  practice  did  not  con- 
template the  intei-vention  of  a  .jury,  but  all  facts  were  found  by 
the  court. '^  Issues  were  sometimes  made  up  and  subinitted  to  a 
jury,  and  such  is  still  the  general  practice,  though  under  the  codes 
all  questions  of  fact  in  litigated  cases,  whether  the  action  is  legal 
or  e(|uitable,  may  be,  and  usually  are,  tlie  subject  of  jury  trials. 
The  verdict  of  a  jury  on  an  issue  which  a  court  of  equity  has 
directed  them  to  try  is  advisory  merely,'®  and  is  not  conclusive  on 
the  court,^®  whicli  may  reverse  the  verdict  and  render  a  decree 
opposed  to  the  findings  of  the  jury.^^  As  a  material  fact,  however, 
when  acted  upon  by  the  court,  the  verdict  should  be  appropriately 
noticed,  which  can  ordinarily  be  accomplished  by  a  statement  of 
the  issue  presented  and  the  finding  made  thereon.  In  legal  actions 
for  the  trial  of  title  to  land  the  verdict  or  finding  of  the  jury  is 
always  important  and  must  be  shown. 

§  509.  Abstract  of  Chancery  Proceedings.  In  preparing  min- 
utes of  equitable  actions  involving  title  much  nice  discrimination 
is  necessary  in  order  that  the  abstract  may  show  a  perfect  resume 
of  the  proceedings  and  all  the  material  points  presented,  and  yet 
not  become  unwieldy  oi-  burdensome.  The  name  of  the  court  in 
which  the  action  is  prosecuted;  the  title  of  the  cause;  case  number, 

78  Oral  examinations  were  not  for-  diet  at  law.  This,  however,  is  always 
inerly  pennitted.  the  result  of  special  legislation  and 

79  Quinby  v.  Conlan,  104  U.  S.  420 ;  is  in  derogation  of  the  common-law 
Rusling  V.  Eusling,  35  N.  J.  Eq.  120;  powers  of  a  chancery  court. 
McGan  v.  O'Neil,  5  Col.  58.  It  would  80  Rusling  v.  Rusling,  35  N.  J.  Eq. 
seem  that  this  principle  has  not  been  120;  Marshall  v.  Marshall,  18  W.  Va. 
materially  changed  V)y  the  code,  al-  395;  Stanley  v.  Risse,  49  Wis.  219; 
though  the  forms  of  action  have  been,  Contra,  Marvin  v.  Dutcher,  26  Minn, 
and  that  the  verdict  is  only  in  aid  of  391. 

the  court,  and  does  not  have  the  same  81  Ivy    v.    Clawson,    14   S.    C.    267; 

effect  as  a  verdict  at  law.     See  Stan-  Wakefield    v.    Bonton,    55    Cal.    109; 

ley  v.  Risse,   49  Wis.   219.     In  some  Smith     v.  Richardson,    5    Utah,    424; 

forms   of   equitable   actions   the   ver-  Swegle  v.  Wells,  7   Or.  222 ;   Gladsen 

diet,  when  issues  are  sent  to  a  jury,  v.   Whalcy, -9    S.   C.    147;    Austin   v. 

has  the  same  binding  effect  as  a  ver-  Baintcr,  50  111.  308. 


§  509]  ACTIONS  AND  PROCEEDINGS.  •  531 

and  date  of  coiiimencement  of  the  action  come  first,  and  in  the 
order  indicated.  Then  follows  a  brief  statement  of  the  material 
parts  of  the  bill,  avoiding  all  repetition  and  surplusage.  The  sub- 
sequent steps  next  follow  in  chronological  sequence  down  to  the 
final  determination  or  decree  which  is  usually  shown  in  full.  The 
examples  given  in  this  section  -iud  other  parts  of  this  chapter  will 
fully  serve  to  illustrate  the  matter.  Where  the  case  is  still  unde- 
termined at  the  time  of  the  search,  or  has  not  yet  come  on  to  be 
heard,  the  examiner  sets  out  only  so  much  as  appears  of  record, 
and  indicates  the  condition  of  the  cause  by  adding  the  word  ' '  pend- 
ing, ' '  thus : 

In  the  Circuit  Court  of  Cook  County,  Illinois. 

TTr-77-        «7    X  ^      Case  No.  12,510. 

Wilham  S chafer  I      t     ^,7 

!      171  Chancery. 

-TT  ^  1      Bill  filed  July  16,  1874,  sets  forth 

Henry  Brown.  ,7^  ,      .   -r         ^r.\.r.^, 

->  that  on  or  about  June  12,  1874,  com- 

plai7iant  entered  into  a  contract  with  said  defendant  to  convey  to 
him  all  his  right,  title  and  interest  in  and  to  certain  property  in 
McHenry  Co.,  Ills.,  and  that  said  defendant  agreed  to  convey  to 
him  all  his  right,  title  and  interest  in  and  to  Lot  30,  in  Block  3,,  in 
Bowman's  Subdivision  of  part  of  the  East  half,  of  South  East 
quarter,  of  North  East  quarter  of  Sec.  6,  Town  39  North,  Range 
14,  East  of  3d  P.  M.,  Cook  County,  Ills. 

Prays,  that  said  defendant  be  adjudged  to  specifically  perform 
the  said  contract,  and  to  convey  to  complainant  the  said  premises, 
and  to  furnish  an  Abstract  of  Title  to  said  property  showing  clear 
and  perfect  title  to  same,  and  that  defendant  be  compelled  to  pay 
to  complainant  the  damage  he  has  sustained  by  his  refusal  to  per- 
form said  contract,  etc. 

(Pending.) 

A  continuation  should  take  up  this  case  at  this  point,  and  show 
all  subsequent  proceedings,  thus : 

In.  the  Circuit  Court  of  Cook  County,  JUinoia. 

William  Schafer  1      r    \^, 

In  Chancery, 
vs  V 

'  \      The    follou'inq     proceedings    have 

Henry  Brown.  ,         7     7  ■     i?'  •       "r  7     -*d 

'^       .  '  been  had  rn  this  cause  since  July  18, 

1874.    (Chancery  record  42,  page  17.) 

Aug.  18,  1874,  suit  dismissed  at  complainant's  costs  for  want  of 

prosecution.^^    (Costs  paid.) 

82  An    order    or    decree    dismissing      a  8nl)Soquent  suit  for  tlie  same  matter: 
a  suit  for  want  of  prosecution,  is  like      Porter  v.  Vaughan,  2C  Vt.  624. 
a  non-suit  at  law,  and  is  not  a  bar  to 


532  ABSTRACTS-  OF   TITLE.  [§  509 

Where  more  direct  reference  to  a  former  examination  is  deemed 
(l('siral)Ie  the  following  form  may  be  used  in  a  continuation: 

In  Circuit  Court  of  Cook  County,  Ills. 
]  Case  No.  12,510. 

WiUiani  tShafer  |  Continuing  No.  8  of  an  cxaminu- 

vs.  J-     Hon  made  hij  us  [or  by  any  other  per- 

Henry  Brown.  j      son]  dated  July  18.,  1874,  (and  hereto 

J      attached.) 
Aug  18,  1871,  dismissed  at  compUiinant's  costs  and  judgment. 
Execution  No.  2,415  iss}(cd,  dated  Dec.  1,  1874. 

Tlie  further  examples  given  in  this  chapter  ol'  special  proceedings 
in  the  different  chancery  actions,  will,  it  is  believed,  furnish  suffi- 
cient data  for  any  exigency  that  may  arise,  wliile  the  examiner  will 
have  no  difficulty  in  adapting  them  to  details  or  ditt'erences  of  prac- 
tice in  his  own  State." 

§  510.  Injunctions.  An  injunction  is  a  writ,  commanding  or 
restraining  the  commission  of  some  act,  to  serve  the  purposes  of 
equity  and  good  conscience.  In  the  endless  variety  of  cases  where 
a  plaintiff'  is  entitled  to  equitable  relief,  if  that  relief  consists  in  re- 
straining the  commission  or  continuance  of  some  act  of  the  defen- 
dant, a  court  of  equity  will  administer  it  by  means  of  the  writ 
of  injunction. 

Injunctions  are  rarely  shown  in  abstracts  of  title,  and  when 
showTi  have  reference  usually  to  transitory  matters  which  affect  the 
title  only  incidentally,  being  connected  rather  with  the  use  and 
occupation  of  the  land,  than  with  any  matter  which  goes  to  the 
title.  Temporary  injunctions  restraining  the  sale  of  land  pending 
litigation  ^*  will  sometimes  be  found,  as  well  as  writs  restraining  the 
action  of  public  officers,  who,  under  a  claim  of  right,  are  proceeding 
illegally  to  impair  the  rights  or  injure  the  property  of  individuals 
or  corporations,^^  as  also,  to  prevent  a  multiplicity  of  suits.  In- 
junctions are  granted  upon  motion   in  pursuance  of  the  statute 

83  111  connection  with  this  chapter  tive  remedy  and  can  not  be  invoked  to 
tjie  reader  is  referred  to  the  chapter  command  a  party  to  undo  what  he  lias 
of  this  work  entitled  "Execution  and  done  or  restrain  him  from  doing  an 
.Judicial  Sales. "  act   which   he   is   alleged   to   have   al- 

84  Camp  v.  Bates,  11  Conn.  51;  Sid-  ready  done:  Wangclin  v.  Goe,  50  111. 
cner  v.  White,  46  Ind.  588;  Fehrle  v.  459. 

Turner,    77    Ind.    530    (reversing,    34  86  Smith  v.  Bangs,  15  III.  399 ;  Mc- 

Ind.  noiH.     An  injunction  is  a  prevcn-       Intyre  v.  Mclntyre,  80  111.  127;  Keam 


§  511]  ACTIONS  AND  PROCEEDINGS.  533 

and  are  usually  auxiliary  to  some  legal  proceeding  then  commenced 
or  pending,  and  may  be  shown,  when  material  to  the  title,  either  in 
connection  with  such  pending  suits,  or  as  independent  exhibits. 
An  injunction  which  has  been  dissolved  does  not  call  for  notice. 
Perpetual  injunctions,  when  relating  to  matters  which  directly  con- 
cern title,  become  permanent  muniments,  and,  of  course,  must  be 
regularly  shown  in  connection  with  the  enjoined  matter.  This  will 
be  the  case  in  respect  to  rights  of  way  appurtenant  to  land ;  ^  or 
of  deeds  declared  to  be  void,  when  attempted  to  be  used  as  evidence 
of  title ;  ^^  and  of  judgments  which  have  become  invalidated  for 
any  reason.^^  A  perpetual  injunction  to  quiet  title  will  sometimes 
lie  when  there  has  been  no  trial  at  law ;  as  when  the  party  having 
possession  is  disturbed,  but  not  so  dispossessed  as  to  make  it  the 
subject  of  an  action  at  law.^^ 

§  611.  Ejectment.  The  action  of  ejectment  is  said  to  have  origi- 
nated at  some  period  uncertain  between  the  years  1327  and  1377, 
and  was  at  first  a  mere  action  of  trespass  to  recover  damages  from 
an  intruder  who  had  usurped  possession.^"  A  new  feature,  not 
contemplated  by  the  original  writ,  was  soon  introduced,*^  for  the 
purpose  of  enabling  the  plaintiff  to  recover  the  term  as  well.  It 
was  originally  brought  only  by  a  lessee,  to  recover  possession  of  the 
lands  from  which  he  had  been  ousted,  and  in  its  strictly  technical 
sense  is  still  an  action  for  the  recovery  of  the  possession  of  real 
estate,  but  in  practice  it  is  more  generally  used,  both  in  England 
and  the  United  States,  to  determine  the  title  to  lands,*^  to  which 
possession  attaches  itself  as  an  essential  attribute.  Under  the 
statute  it  possesses  little  of  its  original  features,*^  while  its  general 

V.  Ash,  27  N.  J.  Eq.  57.     The  writ  is  89  Trustees    of   Louisville   v.    Gray, 

often    emploj'ed   in   disputes   between  1  Litt.    (Ky.)    148.     The  writ  of  in- 

the   civic  authorities   and   individuals  junction,  as  a  provisional  remedy,  has 

relative  to  rights  of  way,  occupation  been  abolished  by  the  codes  which  sub- 

of  streets,  etc. :    Pettibone  v.  Hamil-  stitute  a  statutory  remedy  by  order ; 

ton,  40  Wis.  402 ;  Knox  v.  Police  .Jury  but  the  nature  of  the  remedy  has  not 

of  Baton  Eouge,  27  La.  An.  204.  been  changed. 

86  Truehart  v.  Price,  2  Munf.  (Va.)  90  Warvelle  on  E jectiiient  4.  Et  seq. 
488.  91  Huitpospd    to    he  about   tlie   year 

87  Bushnell  v.  Harford,  4  Johns.  Ch.  1455. 

302.  92Guyer  v.  Wookey,  18   111.  536. 

88  Kruson  v.  Kruson,  1  Bibb.  93  As  originnlly  administered  it  de- 
(Ky.),  184;  Brinkerhoff  v.  Lansing,  ponded  upon  a  series  of  legal  fictions 
4  Johns.  Ch.  69 ;  Gairity  V.  Russell,  40  rind  feigned  issues:  3  Black.  Com. 
Conn.    450;    Dalton    v.    Lamburth,    9  200. 

Nev.   192. 


534  ABSTRACTS   OF    TITLE.  [§  511 

scope  has  been  so  extended  that  it  is  coinpeteut  to  determiue  almost 
every  (juostiou  that  can  arise  iu  conflicting  titles.  It  is  now  re- 
jrarded  as  a  h'gal  reuiedy,**  to  be  prosecnted  only  by  the  real  parties 
in  interest,^*  having  the  legal  title  to  the  land,®^  and  can  be  brought 
only  against  the  j)erson  in  possession  of  the  premises,  if  they  are 
oecupied,^'^  or  against  a  person  claiming  title,  etc.,  when  the  premises 
are  vacant  and  unoccupied,  it  is  used,  not  only  to  determine  the 
title  of  parties  claiming  from  the  same  source,  as  well  as  to  settle 
conflicting  adverse  titles  derived  from  independent  sources,  but  also 
by  purchasers  under  execution  and  judicial  sales  to  obtain  posses- 
sion of  the  property  purchased  and  extinguish  the  occupying  claim- 
ant's  rights. 

At  common  law  a  judgment  or  decree  in  ejectment  is  not  re- 
garded as  conclusive  iu  respect  to  the  question  of  title,  but  as  a 
recovery  of  the  possession  without  prejudice  to  the  right,  as  it  may 
afterward  appear,  even  between  the  same  parties,®^  but  wherever 
the  common  law  form  of  the  action  is  abolished,  and  same  is  prose- 
cuted by  the  real  parties  in  interest,  in  their  own  names,  the  judg- 
ment is  an  estoppel  and  a  valid  bar  to  any  subsequent  action,  unless 
such  privilege  is  expressly  given  by  statute.^^  Where  a  recovery 
is  had  against  the  occupant,  the  judgment  binds  not  only  him,  but 
all  persons  in  privity  of  estate  or  possession  with  him,^  and  con- 
cludes them  from  again  litigating  the  same  title,^  but  is  not  neces- 
sarily a  bar  to  a  subsequent  suit,  or  to  defenses  set  up  in  a  subse- 
quent suit,  unless  the  titles  and  defenses  are  precisely  the  same 
as  in  the  first  suit.^ 

Nor  does  a  judgment  in  ejectment  transfer  to  the  successful  party 
the  title  of  the  adverse  party,  but,  if  presented  in  the  proper  man- 
ner, whenever  such  adverse  title  is  drawn  in  issue,  it  shuts  out  all 
proof  of  same,  and  its  effect  bears  a  closer  resemblance  to  an  ex- 

94  Gillett  V.  Neganza,  13  Wis.  472 ;  412 ;    Holmes    v.   Carondolet,   38   Mo. 

Guyer  v.  Wookey,  18  111.  536;  Joy  v.  551;    Smith    v.    Sherwood,    4    Conn. 

B^rdell,  25  HI.  537.  276;    Atkins  v.  Horde,   1  Burr.   114. 

96  Hanson    v.    Armstrong,    22     111.  99  Freem.  on  Judgts.  §  299;  Camp- 

442;    Thompson  v.  Schuyler,  2  Gilm.  hell  v.  Hall,  16  N.  Y.  575;  and  see 

(111.)    271.  Clarkson  v.  Stanchfield,  57  Mo.  573. 

96  Allen  v.  Smith,  6  Blackf.  (Ind.)  In  most  of  the  States  a  defeated 
527;   Morton  v.  Greene,  2  Neb.  441.  party  may  have  a  second  trial  as  of 

97  Persons  in  possession  merely,  as  right. 

servants   or   employees  of  the   party  1  Hanson  v.  Armstrong,  22  111.  442 ; 

claiming  adversely,  are  not  occupants  Rodgers   v.    Bell,    53    Ga.    94;    State 

\vithin  the  meaning  of  the  law:  Chini-  v.  Orwig,  34  Iowa,  112. 
C|uy  V.  Catholic  Bishop,  41  HI.  148.  2  Amcsti   v.   Castro,   49   Cal.   325. 

98  Mitchell    V.    Robertson,    15    Ala.  3  Foster  v.  Evans,  51  Mo.  39. 


§  512]  ACTIONS   AND   PROCEEDINGS.  535 

tiiiguishmeiit,  than  a  transfer  of  the  adverse  title.  The  judgment 
awards  the  possession  to  the  prevailing  party,  because  he  had  the 
title  at  the  commencement  of  the  action,  and  because  the  losing 
party  had  no  title,  or  not  such  a  title  as  would  authorize  him  to 
withhold  the  possession ;  but  it  neither  directly  nor  indirectly  trans- 
fers the  title.*  Inasmuch  as  the  judgment  is  conclusive  on  the 
rights  of  the  parties  to  the  subject-matter  of  the  action  and  all  per- 
sons claiming  by,  through  or  under  them  by  title  accruing  after  the 
commencement  of  the  action,^  the  abstract  should  fully  show  the 
points  presented,  their  relation  to  the  land,  and  the  final  disposi- 
tion made,  which  may  all  be  easily  accomplished  by  a  full  synopsis 
of  the  pleadings,  the  verdict,^  and  the  judgment  or  decree. 

§  512.  Quia  Timet.  This  is  an  anticipatory  remedy  to  quiet  the 
title  to  lands,'''  and,  unlike  ejectment,  is  brought  only  by  the  person 
in  possession  of  the  land,  or  one  claiming  to  be  the  owner  when  the 
lands  are  unimproved  or  unoccupied.^  It  is  an  ancient  chancery 
remedy,  but  in  most  of  the  States  is  now  a  statutory  action,  re- 
sorted to  for  the  purpose  of  quieting  the  title  or  the  removal  of  a 
cloud,®  and  equity  is  invoked  to  reach  persons  out  of  possession, 
who  can  not  be  compelled  to  defend  their  right  at  law.^** 

The  decree,  unless  otherwise  provided  by  statute,  is  not  properly 
a  judgment  in  rem,  establishing  title  to  the  land,  but  operates  in 
perso7iam  only,  by  restraining  the  defendant  from  asserting  his 
claim,  or  by  directing  him  to  perform  some  duty,  as  to  deliver  up 
his  deed  to  be  canceled,  or  to  execute  a  release,  etc.^^ 

The  possession  which  confers  jurisdiction  in  such  cases  must 
have  been  acquired  in  a  lawful  way,^^  though  the  complainant  is 

4Mahoney    v.    Middleton,    41    Cal.  must  be  stated:     Harding  v.  Strong, 

41.  42  111.  148. 

5  Sheridan  v.  Andrews,  3  Lans.  (N.  '  Frequently  denominated  a  bill  of 
Y.)    129;    Amesti  v.   Castro,  49   Cal.  peace. 

325.  8  Gould  V.  Sternberg,  105  111.  488; 

6  Where  the  verdict  fails  to  specify       Hardin  v.  Jones,  86  lU.  313. 

any  estate,  judgment  can  not  be  ren-  *  Hardin  v.  Jones,  86  111.  313 ;  Col- 

dered  on  it:      Long  v.  Linn,   71   111.  ^'""^  ^-  Collins,  19  Ohio  St.  468. 
152;  but  a  finding  that  the  plaintiff  1»  Barron  v.  Eobbins,  23  Mich.  42; 

.     ,,  i!  i.v.    1     J  •        itt  •     4.1  Alton  Ins.  Co.  v.  Buckmaster,  13  111. 

IS  the  owner  of  the  land  is  suflttciently  ^  ' 

explicit    as    to    the    plaintiff's  title:  "  ,i  ,r      .           rrr  ^^^      „    ^        ,     ,^^ 

^  ^  11  Massie   v.   Watts,   G   Cranch    (TJ. 

Haddock    v.    Haddock,    22    111.  384;  q  x    i.o      ^r      ,                -r,                 n^ 

'  '  fl.)    148;     Vandever   v.    Freeman,    20 

when   tried   by  the   court  the  finding  t^^.   334      g^^j^   ^^^^^^^  ^^^   ^^^^j^^ 

and  judgment  must  be  for  the  prem-  ^^y^   q^  parties   and   privies:      Buck- 

ises    described   in   the   pleadings   and  master  v.  Byder,  12  111.  207. 
the  character  of  the  estate  recovered  12  Hardin  v.  Jones,  86  111.  313. 


536  ABSTRACTS   OF    TITLE.  [§  512 

not  bouiul  to  show  a  perfect  title  as  agaiust  all  the  world, ^^  as  is  the 
case  of  one  seeking;  to  recover  possession,  and  the  title  asserted  must 
be  the  lepal  title,^*  or  at  least  the  complainant  must  be  tlie  real 
ttwiuT.^^  An  e(iuit<ible  claimant,  who  is  not  in  possession,  can  not 
invoke  the  aid  of  a  court  to  quiet  his  title  and  remove  the  cloud  east 
uj)on  it  by  other  claimants.^® 

Where  clouds  or  obscurations  of  any  kind  are  found  upon  exam- 
ination, and  no  other  or  more  convenient  method  can  be  employed 
to  remove  them,  it  is  the  duty  of  counsel  to  recommend  a  bill  to 
quiet  title,  and  for  nearly  every  species  of  colorable  interference 
with  the  legal  title  this  furnishes  a  most  efficient  remedy.  There  is 
in  some  States  a  special  statutory  action  to  establish  and  confirm 
title  where  records  have  been  destroyed.'  The  general  features  of 
these  actions  resemble  the  action  to  quiet  title  above  described  but 
the  scope  and  legal  effect  is  broader.^' 

§  513.  Partition.  Originally,  partition  could  only  be  enforced 
between  co-parceners,  but  by  statute  in  England  at  an  early  day 
compulsory  partition  was  allowed  between  joint  tenants  and  ten- 
ants in  common.  The  right,  as  exercised  there  and  in  this  country 
as  well,  is  given  only  to  one  having  an  actual  or  constructive  pos- 
session of  the  lands  sought  to  be  partitioned.  Hence,  unless  the 
statute  expressly  provides  otherwise,  the  right  is  peculiar  to  those 
having  a  present  estate,  which  carries  with  it  the  right  of  possession, 
and  necessarily  excludes  remainder-men  and  reversioners,  who  have 
simply  an  estate  to  vest  in  possession  in  futuro}^  It  would  seem, 
however,  that  remainder-men  or  reversioners  in  fee  may  have  par- 
tition among  themselves  subject  to  the  unexpired  precedent  partic- 
ular estate.^* 

Partitions  occur  in  many  titles  of  long  standing,  particularly  in 
agricultural  lands  and  large  tracts,  and  as  the  interests  of  minor 
heirs  and  others  under  disa])ility  are  frequently  involved,  the  pro- 
ceedings should  show  affirmatively  a  full  statutory  compliance.  The 

13  Ruckcr  v.  Dooley,  49  111.  377 ;  17  Of  this  class  is  the  so-called 
Schroeder  v.  Gurney,  17  N.  Y.  Sup.  "Burnt  Record  Act"  of  Illinois, 
Ct.  413.  which    enables    parties    to    establish 

14  San  Diego  v.  Allison,  46  Cal.  162;  title  against  all  persons,  even  though 
O'Brien  v.  Creig,  10  Kan.  202;  Fonda  unknown,  who  may  liave  or  claim  in- 
V.  Sage,  48  N.  Y.  173.  tcrests  in  the  land. 

16  Carlisle  v.  Tindall,  49  Miss.  229 ;  18  Sullivan  v.  Sullivan,  66  N.  Y.  37; 

Lee   V.    Ruggles,    62    111.    427;    Eiden  Spight    v.    Waldron,    51    Miss.    356; 

V.   Eiden,  41  "Wis.  460.  Scarborough   v.   Smith,   18   Kan.   399. 

16  Herrington  v.  Williams,  31   Tex.  19  Scovillc     v.     Hilliard,      48      111. 

44S.  453. 


§  513]  ACTION'S   AND   PROCEEDINGS.  537 

I)roeedui-e  is  substantially  the  same  in  all  the  StateSj^"  making  due 
allowances  for  minor  differences  of  practice,  and  involves  a  pres- 
entation of  the  case  to  a  court  of  competent  jurisdiction;  a  decree 
defining  the  interests  of  the  parties ;  the  appointment  of  a  master 
or  commissioners  to  execute  the  decree  and  make  partition,  or  to 
inquire  into  the  expediency  of  same  or  susceptibility  of  the  prop- 
erty to  partition;  the  report  of  the  commissioners;  and  confirma- 
tion or  final  decree.  All  of  the  foregoing  steps  are  essential,  and 
form  regular  links  in  the  chain  of  title. 

It  is  customary  under  the  old  chancery  practice  to  decree  mu- 
tual interchange  of  deeds,  but  statutory  power  is  now  generall.v 
given  to  confirm  title  in  the  parties  in  cases  of  partition,  without 
this  formality.^^  The  decree  is  prima  facie  evidence  of  title  in 
favor  of  each  of  the  parties  to  the  particular  tract  adjudged  to 
him,22  and  conclusive  against  all  the  parties  before  the  court,  and 
their  privies.^*  The  decree  under  the  statute  may  be  final  and  con- 
clusive as  evidence  between  the  parties  without  the  interchange  of 
deeds,  either  by  the  parties  or  commissioners,  as  it  ascertains  all 
the  rights  involved,  and  leaves  nothing  to  be  done  but  to  carry  it 
into  effect.  It  does  not,  however,  vest  in  either  of  the  co-tenants 
any  new  or  additional  title  in  respect  of  the  respective  parcels  set 
off  to  each,  but  simply  severs  the  unity  of  possession  theretofore 
existing.^  The  title  by  which  each  holds  his  divided  share  after 
partition,  is  the  same  as  that  by  which  his  undivided  interest  was 
held  prior  thereto.^^ 

Where  title  is  deduced  through  a  decree  of  partition  in  a  suit 
between  the  heirs  of  a  deceased  owner,  the  adjudication,  where  the 
court  has  jurisdiction,  finding  who  are  the  heirs  at  law  of  the 
deceased  owner,  is  prima  facie  evidence  of  who  were  the  heirs  and 
owners  of  the  land  whose  interests  were  allotted  or  decreed  to  be 
sold ;  and  in  an  action  of  ejectment  brought  by  a  grantee  of  one  of 
the  parties,  or  a  purchaser  at  the  sale,  against  a  stranger  to  the  par- 
tition suit,  the  plaintiff  is  not  bound  to  produce  evidence  of  heir- 
ship outside  of  such  decree,  in  the  absence  of  proof  to  the  contrary. 
The  doctrine  that  judgments  and  decrees  are  evidence  only  in  suits 
between  parties  and  privies  has  no  application,  it  would  seem,  in 

20  Under  the  statute  the  action  for  22  Word  v.  Douthett,  44  Tex.  365. 
partition  of  lands  is  a  suit  at  law  in  23  Wright   v.    Marsh,    2   G.   Greene, 
some  of  the  States,  and  not  in  equity,  94;    Allie   v.    Sohmitz,    17   Wis.    169; 
and  is  a  substitute  for  the  old  com-  Smith  v.  Crawford,  81  111.  296. 

mon  law  action  of  partition:  Hopkins  24  Wade  v.  Deray,  50  Cal.  .'^70. 

V.  Medley,  97  111.  402.  25  Carter  v.  Day,  .'^9  Ohio  St.  96. 

21  Smith  V.  Crawford,  81  111.  296. 


538 


ABSTRACTS    OF    TITLE. 


[§513 


.sucli  a  cast'. 2**  'I'lif  ,sviu)|)sis  uhicli  follows  will  scfvc  t()  fairly  indi- 
cate the  metiiod  of  showing  a  partition,  and  will  also  serve  as  a 
precedent  for  other  chancery  actions: 


Robert  E.  Jones,        ] 
vs.  I 

Edward  C.  Walker,  \ 
Thomas  Cannon,  Sarah  J» 
C.  Xcwhouse,  a  minor,  j 
and  James  W.  New-  j 
house,  her  guardian  j 
and  next  friend. 


In  Circuit  Court  of  Cook  County,  Illinois. 
Case  No.  39,379. 
In  Chancery. 
Hill  filed  Oct.  24,  1881. 
liC presents  that  complainant  and  de- 
fendant   Edward   C.    W(dker,   are    the 
owners  each  of  an  undivided  one  half 
as  tenants  in  common  of  Ijot  80,  ScJiool 
TruMees'  Subdivision  of  the  North  part 
of  Section  16,  Town  39  North,  Range  13, 
east  of  3d  P.  M.,  being  now  subdivided  into  sixteen  lots  and  knoivn 
as  Secrist's  Subdivision  of  said  Jjot  80.^'' 

That  defendants,  Sarah  C.  Newhonse,  a  minor,  and  Thomas  Can- 
non, have  or  claim  to  have,  some  interest  n?  or  lien  upon  said 
premises.^^ 

Prays  for  a  partition  and  division  of  said  premises  according  to 
the  rights  and  interests  of  the  parties  in  severalty,  if  same  can  be 
done  without  manifest  prejudice  to  the  owners  thereof,  or  if  the 
partition  can  not  be  made  without  such  manifest  prejudice,  that  a 
sale  thereof  be  made  according  to  law,  and  that  the  proceeds  of  such 
sale  be  distributed  atnong  the  parties  respectively  entitled  thereto.^^ 
Chancery  summons,  (to  Cook  county)  issued,  dated  Oct.  24,  1881, 
to  all  said  defendants,  returnable  3d  Monday  of  Nov.,  1881 ,  and 
duly  served  upon  all  said  parties.^^ 


26  Whitman  v.  Heneberry,  73  III. 
109. 

27  A  bill  in  equity  for  partition 
need  not  make  any  formal  deraign- 
nient  of  title  but  must  state  the 
complainant's  own  title  and  the 
title  of  the  defendants  so  that  it 
may  appear  that  they  hold  the  land 
as  cotenants.  It  should  also  show 
the  undivided  proportions  belonging 
to  each,  and  that  they  are  entitled 
to  a  partition. 

28  To  entitle  a  party  to  partition 
it  is  not  enough  for  him  to  show 
prima  facie  title  in  himself;  he 
must  also  make  persons  holding 
adverse    titles    parties    to    the    action 


or  show  that  they  are  not  under 
disability  and  that  their  title  is 
completely  barred:  Eoss  v.  Cobb, 
48  111.  111. 

29  The  law  contemplates  two  modes 
of  proceeding  in  order  to  procure  a 
divLsion  of  real  estate  held  in  joint 
tenancy  or  in  common:  (1)  By  a 
partition  of  the  premises  without 
sale;  and  (2)  where  a  partition  can 
not  be  conveniently  made,  by  a  sale 
of  the  property. 

30  Very  frequently  counsel  desires 
to  know  the  manner  of  service,  par 
ticularly  where  persons  under  disa- 
bility are  interested,  and  in  such 
case     the     abstract     at     this     point 


§  514]  ACTIONS   AND   PROCEEDINGS.  Oo'J 

Answer  of  defendant  Edward  C.  Walker  (and  replication  there- 
to) filed  Dec.  8, 1881. 

Default  of  defendants,  Thomas  Cannon,  James  W.  Newhouse, 
guardian  and  next  friend,  taken  and  entered  Dec.  8, 1881,  (chancery 
record  42,  pg.  198)  for  want  of  plea,  answer  or  demurrer  to  hill,  and 
Louis  Hunt  appointed  guardian  ad  litem  for  said  minor  defendant, 
Sarah  A.  Newhouse. 

Cause  referred  to  W.  Fenimore  Cooper,  Master  in  Chaiicery,  Dec. 
8„  1881. 

Master's  report,  suhmitting  proofs  and  exhibits,  filed  Feb.  20, 
1882. 

'  Said  master  reports  that  the  material  facts  averred  in  the  bill 
have  been  fully  proved,  and  said  complainant  is  entitled  to  the 
relief  prayed  for  in  said  bill. 

Decree  entered,  Feb.  20,  1882  (Chancery  Record  42,  page  406). 

[Here  should  follow  the  decree  or  every  material  part  thereof. ^^] 

Where  the  decree  is  interlocutory  only,  the  subsequent  proceed- 
ings, as  the  appointment  and  report  of  commissioners,  offers  and 
acceptances  of  parties,  together  with  the  final  decree  and  confirma- 
tion should  follow  in  regular  order.  What  has  been  given  will 
serve  to  fully  illustrate  the  method  in  which  subsequent  steps  may 
be  shown. 

Where  a  partition  occurs  in  the  history  of  a  title  counsel  should 
carefully  note  that  all  persons  shown  to  have  any  interest  are  prop- 
erly joined  in  the  suit  as  parties.  For  this  purpose  reference  should 
always  be  made  to  the  proof  of  heirship,  made  in  the  probate  of  the 
ancestor's  estate,  where  the  title  is  derived  through  descent,  and 
the  names  of  the  heirs  compared  with  those  in  the  partition  suit.  If 
minors  are  interested  the  proceedings  will  be  void  as  to  them  unless 
they  are  made  parties  and  personally  served  with  process. ^^ 

§  514.  Specific  Performance.  Equity  will  enforce  specific  per- 
formance of  agreements  relating  to  lands  ;^^  compel  conveyance  of 

should  disclose  such  method  by  a  was  * '  personally  served ' '  is  not  suf - 
copy  or  summary  of  the  returns  of  ficient,  as  a  very  slight  omission  will 
the  officers.  Where  all  the  parties  frequently  vitiate  the  return  and 
enter  an  appearance  the  method  prevent  jurisdiction  from  attaching, 
above  given  is  sufficient,  but  when  31  See  §  465,  *  *  Judgments  and  De- 
there  has  been  default,  it  is  essen-  crees, ' '  for  a  precedent  of  a  decree, 
tial  to  a  correct  opinion  that  the  32  Terrell  v.  Weymouth,  33  Fla. 
method   of   service   upon   the   non-ap-  255. 

pearing   parties   be    shown,   and   this  33  Kerfoot  v.  Breckenridge,  87  111. 

can  only  be  done  by  a  copy  of  the  205. 
return.        Stating      that      defendant 


540  ABSTRACTS    OF    TITLE.  [§  514 

land  purcliascil,^*  citlicr  l)y  the  Nt'iulor  or  his  licir.s;^^  oi'  where  spc- 
eitie  performance  can  not  he  enforced,  will  give  other  adequate  re- 
lief.'^ The  essential  conditions  of  such  contracts  are:  That  they 
be  made  by  competent  parties,  willingly  entered  into;^'  that  the 
terms  are  certain  and  well  defined;"  be  founded  upon  sufficient 
consideration;^*  and  the  party  seeking  its  performance  must  ful- 
fill his  obligations  under  it.*°  The  contract  must  further  be  lawful 
in  its  character,*^  and  such  as  a  court  can  enforce.**  As  this  mat- 
ter occurs  most  fi'ecjuently,  in  connection  witli  title,  in  actions  grow- 
ing out  of  agreements  to  deed,  it  is  advisable,  that,  in  case  per- 
formance has  been  decreed  and  consummated,  a  rather  full  synopsis 
be  given  of  all  the  material  parts  of  the  pleadings;  master's 
report,  if  there  has  been  a  reference ;  and  of  the  final  decree.  If 
performance  has  been  denied,  and  the  contract  or  agreement  is  of 
record,  the  same,  together  with  a  brief  notice  of  the  action,  may 
be  shown  as  a  special  appendix. 

In  addition  to  actions  in  the  Circuit  Court,  it  is  provided  in 
some  States  that  when  any  deceased  person  was  bound  by  a  con- 
tract in  writing  to  convey  any  real  estate  a  specific  performance 
by  the  personal  representatives  of  such  deceased  person  may  be 
decreed  in  the  probate  court,  in  all  cases  where  the  deceased,  if 
living,  might  be  compelled  to  execute  such  conveyance.  The 
jurisdiction  in  this  event  is  obtained  by  petition  setting  forth  the 
jurisdictional  facts,  and  of  notice,  duly  given  in  accordance  with 
the  statute.  The  petition,  notice,  proof  of  service  and  decree, 
should  precede  or  supplement  the  administrator's  or  executor's 
deed  when(>ver  it  is  shown  in  the  abstract.*' 

34  Marling  v.  Marling,  94  W.  Va.  42McClcllan  v.  Darrah,  50  111. 
79.  249. 

35  Bennett   v.  Waller,   23   111.   97.  *8  By  statutory   provision  in  many 

36  Woodward  v.  Harris,  2  Barb.  States  a  certified  copy  of  the  order 
439;   Oliver  v.  Croswell,  42  111.  41.  or   decree   directing  the   execution   of 

37  Johnson  v.  Dodge,  17  111.  433;  ^^'^  conveyance,  is  required  to  be  re- 
Tavlor  v.  Merrill,  55  111.  52.  ^^O''^^^   ^^   t^e   registry   of   deeds   of 

38Schmeling    v.    Kriesel,    45    Wis.  ^^^    county    in    which    the    land    is 

357;    Colson   v.    Thompson,   2  Wheat.  "'t"^*^'    ^°^    ^'^^^    ^^^^^^^    ^^PJ'    ^« 

336;    Gigos  v.  Cochran,  54  Ind.  593.  '"''''^^     ^'''^^"^^     °^     *^«     correctness 

39  Cheney    v.    Cook,    7    Wis.    413;  ^/   *.*'"   proceedings,   and    of   the   au- 


Smith  V.  Wood,  12  Wis.  382. 


thority  of  the  executor  or  adminis- 
trator to  make  the  conveyance,  while 
40  N.    W.    Iron    Co.    v.    Mead,    21       the  conveyance  itself  is  made  effectual 

Wis.   474;   Ishmeal  v.  Parker,   13   111.       ^o  pass  the  estate  contracted,  as  fully 

324. 


as   if   the   contracting  party   himself 
were    still    living 
same:     K.    tt.    Wi 
St-  251.  Gen.  Stat.  Ch.  58. 


41McClurkon     v.     Detrich,    33     111.       were    still    living   and    then    executed 
349;    Hooker    v.    Do    Palos,    28    Ohio       same:     K.    S.    Wis.    Ch.    167;    Minn. 


§  516]  ACTIONS   AND   PROCEEDINGS.  541 

§  515.  Redemption.  Bills  to  redeem,  though  formerly  of  com- 
mon occurrence,  are  now  rarely  employed,  from  the  fact  that  the 
fundamental  law  concerning  mortgages  has  been  radically 
changed,  and  the  necessity  of  equitable  interference  to  restore  the 
mortgagor's  rights  no  longer  exists  save  in  a  few  instances.  After 
the  law  day  has  passed  the  status  of  the  mortgagor's  title  is  sub- 
stantially the  same  as  it  was  before,  and  until  foreclosed  by  legal 
methods  the  right  to  redeem  by  simple  payment  is  unimpaired. 
Such,  at  least,  is  the  recognized  law  in  a  majority  of  the  American 
States.  But  when  a  deed,  though  in  fact  given  as  security  only, 
is  absolute  on  its  face,  and  purports  to  convey  an  absolute  estate 
in  fee,  the  mortgagor,  to  assert  his  right  of  redemption  and  become 
reinvested  with  his  former  title,  must  still  make  application  to  a 
court  of  equity  by  a  bill  to  redeem,  or  such  other  similar  remedy' 
as  the  statute  has  provided.  In  like  manner,  if  a  mortgagee,  having 
entered  for  condition  broken,**  refuses  to  relinquish  possession  of 
the  mortgaged  lands  after  payment,  or  tender  of  payment,  of  the 
money  due  on  the  mortgage,  the  only  remedy  of  the  mortgagor, 
in  States  where  the  ancient  doctrine  still  obtains,  in  order  to  regain 
the  estate,  is  by  a  bill  to  redeem.*^  Ordinarily,  however,  this  latter 
end  is  attained  bj-  a  direct  proceeding  to  have  the  mortgage  can- 
celed. The  bill,  in  some  form,  together  with  its  attendant  decree, 
will  occasionally  occur,  particularly  in  case  of  equitable  mortgages, 
and  as  its  effect  upon  title  is  very  marked,  it  must  be  fully  set 
forth. 

§  516.  Foreclosure.  Probably  no  class  of  legal  proceedings  so 
often  figures  in  examinations  of  title  as  actions  brought  to  fore- 
close and  enforce  liens,  and  particularly  is  this  true  in  the  matter 
of  the  foreclosure  of  mortgages.  A  foreclosure  in  equity,  accord- 
ing to  ancient  legal  theory,  is  a  proceeding  by  which  the 
mortgagor's  right  of  redemption  in  the  mortgaged  premises  is 
barred  or  closed  forever,  and  occurs  when  the  mortgagor  has  for- 
feited his  estate  by  non-payment  of  the  money  due  on  the  mortgage 
at  the  time  appointed,  but  still  retains  the  equity  of  redemption.*^ 
In  such  case  the  mortgagee  ma}'  call  upon  the  mortgagor,  in  a 
court  of  equity,  to  redeem  his  estate  presently,  or,  in  default 
thereof,  be  forever  closed  or  barred  from  any  right  of  redemption. 

44  This  is  still  permitted  in  a  few  of  equity  will  never  decree  a  foreclos- 
States,  see  Chap.  XXII.  ure  until  the  period  limited  for  pay- 

45  Parsons  v.  Wells,  17  Mass.  419;  niont  has  expired:  Harshaw  v.  Mc- 
Sherman  v.  A])bott,  18  Pick.  448.  Kcsson,  66  N.  C.  266. 

46  1  Bou.  Law.  Diet.  599.     A  court 


542  ABSTRACTS    OF    TITLE.  [§  516 

Two  geiionil  lacthods  of  foreclosure  are  reeognizetl  in  e(iiiity,*" 
one,  called  strict  foreclosure,  whereby  the  mortgagee  is  adjudged 
the  absolute  owner  of  the  property;  and  the  other,  by  a  sale 
of  the  property  under  the  direction  of  and  by  an  officer  of  the 
court,  in  which  case  the  proceeds  are  applied  to  the  discharge  of 
incumbrances,  according  to  their  priority,  and  the  balance,  if  any, 
paid  over  to  the  mortgagor.  Strict  foreclosure  has  always  been  re- 
garded as  a  harsh  remed.v,  and  is  not  permitted  in  most  of  the 
States,  nor  is  the  title  thus  acquired  as  safe  as  when  made  by  the 
ordinary  foreclosure  by  sale. 

The  title  derived  under  a  foreclosed  mortgage  is  evidenced  by 
tlie  mortgage  itself;  the  proceedings  and  decree  in  foreclosure;  the 
certificate  of  sale,  report,  and  confirmation;  and  finally  by  the 
selling  officer's  deed,  all  together  composing  one  transaction.  Much 
care  should  be  exercised  in  preparing  a  synopsis  of  the  proceedings, 
especially  in  regard  to  parties,  and  counsel,  in  passing  title,  should 
see  that  all  persons  who  might  legally  assert  any  rights  in  relation 
10  the  mortgaged  premises  have  been  regularly  brought  in  and 
properly  barred  or  their  rights  adjusted.  This  will  include  not 
only  the  mortgagors,  but  subsequent  mortgagees,  judgment 
creditors,  lien  holders,  and  all  other  persons  possessing  legal  rights 
or  equities  accruing  subsequent  to  the  lien  asserted  by  the 
mortgage.**  Where  the  foreclosure  is  recent,  and  particularly 
when  the  title  under  investigation  is  that  offered  at  the  fore- 
closure sale,  the  decree  and  antecedent  proceedings  should  be  set 
out  very  fully, 

§517.  Dower.  The  interest  which  a  widow  possesses  in  the 
lands  of  her  deceased  husband  in  right  of  dower  may,  at  common 
law,  be  assigned  to  her  in  severalty  by  the  heir,  without  the  order 
of  a  court  and  without  a  deed,  for  the  assignment  in  such  case 
is  not  regarded  as  a  conveyance  of  title,  but  only  the  ascertain- 
ment of  an  interest  which  is  a  continuation  of  the  estate  of  the 
husband,  and  which  is  held  of  him  by  appointment  of  law;*® 
the  only  effect  of  the  assignment  being  to  distinguish  the  land  to 
which  it  attaches  from  the  rest  of  the  husband's  estate.  But 
should  the  heir  neglect  or  refuse,  within  a  reasonable  time  after 
the  death  of  a  husband,  to  lay  off  and  assign  to  the  widow  such 

47  There  is  also  a  method  of  fore-  48  Hinson  v.  Adrian,  86  N.  C.   61  ; 

rlosure  at   law,   by  means   of  a  pro-  Mabury  v.  Ruiz,  58  Cal.  11. 

eoeding   by   scire   facias,    but   which,  49  Farnsworth  v.  Cole,  42  Wis.  405; 

from  its  inadequate  nature,  is  seldom  4  Kent.  Com.  62. 
resorted   to. 


§  518]  ACTIONS  AND  PROCEEDINGS.  543 

portion  of  the  land  as  she  may  be  entitled  to  use  and  occupy,  or 
when  the  particular  part  can  not  be  agreed  upon,  or  when  the 
right  is  disputed,  recourse  may  be  had  to  equity  to  determine 
the  rights  and  apportion  the  interests  of  the  parties.  In  some 
States  an  ejectment  suit  at  law  may  be  resorted  to  by  the  widow. 

Where  the  right  is  undisputed,  dower  may  be  assigned  by  the 
probate  court,  as  an  incident  to  the  settlement  of  the  husband's 
estate,  and  the  award  in  such  case  should  substantially  appear  in 
the  synopsis  of  probate  proceedings,  or  as  an  independent  exhibit. 

Where  the  right  is  disputed  the  probate  court,  as  a  rule,  has 
no  jurisdiction,  while  in  many  States  if  the  heir  or  other  person 
shall  not,  within  some  specified  period  after  the  death  of  the 
husband,^®  satisfactorily  set  over  and  assign  to  the  surviving 
wife  dower  in  and  to  all  lands  whereof  by  law  she  is  or  may  be 
dowable,  such  surviving  wife  may,  in  the  first  instance,  sue  for 
and  recover  the  same  by  petition  in  equity,  against  the  heir  or 
any  other  person  claiming  right  or  possession  of  said  estate.  In 
either  ease  the  interposition  of  commissioners  is  contemplated, 
and  the  report  of  the  commissioners,  together  with  the  approval 
of  the  court,  are  necessary  parts  of  the  abstract  of  the  proceed- 
ings. Where  an  allowance  is  made  in  lieu  of  dower  a  state- 
ment must  be  made  of  that  fact,  particularly  when  by  decree 
the  assessment  of  such  allowance  is  made  a  lien  upon  the  heir's 
land. 

§  518.  Divorce.      The    dissolution    of    the    marriage    contract, 

though  formerly  a  power  exercised  by  the  legislature,  is  now 
very  generally  relegated  to  courts  of  equity,  and,  as  a  rule,  such 
courts  have  exclusive  original  jurisdiction.  Until  decree  has 
actually  been  entered,  the  legal  relations  of  the  parties  continue 
to  subsist,  even  where  the  marriage  is  utterly  void  for  pre-existent 
causes,  and  such  decree,  to  be  effective,  must  further  be  made 
during  the  lifetime  of  both  parties.^^ 

At  common  law,  a  divorce  was  only  granted  for  pre-existent 
cause,  and  had  the  effect  of  bastardizing  the  issue.  Under  the 
statute  divorces  are  granted  for  causes  arising  subsequent,  as  well 
as  prior,  to  the  marriage,  and  do  not  affect  the  legitimacy  of  the 
children  of  the  marriage,  except,  perhaps,  when  the  divorce  is 
granted  on  the  grounds  of  a  prior  marriage.^^ 

50  Where    husband    and    wife    are  SlEeeves'  Dom.  Rel.  204;  1  Black. 

equally  dowable   in  the  lands  of  the  Com.   440. 

other,    these    remarks    will    apply    to  52  Consult    local    statutes    for    the 

both  sexes.  effect  of  divorce. 


544  ABSTRACTS    OF    TITLR.  [§  518 

I'ciHliiij:  tlir  ilctcriiiiiiatioii  of  tlu'  i-ause  the  liushaiid  may  be 
enjoined  I'roni  disposing  of  his  property  in  order  to  defeat  any 
allowance  of  alimony,^^  bnt  sneh  injunction  is  never  made  per- 
petual on  granting  the  decree."  The  allowance  of  alimony  may, 
however,  be  enforced  by  a  sale  of  the  husband's  real  estate,  and 
by  the  decree  the  payment  of  same  is  frequently  made  a  specific 
lien  upon  his  i)roperty.  When  alimony  or  maintenance  is  made 
to  become  due  by  installments,  and  a  sale  is  made  to  meet  such 
installments,  the  title  will  pass  subject  to  the  lien  of  installments 
not  llieii  line  unless  the  court  shall,  at  the  time,  direct  otherwise.'^ 
When  propei'ty  is  held  by  one  i)arty  which  equitably  belongs  to 
the  other,  the  court  may  compel  conveyance  thereof  to  be  made, 
and  sometimes,  in  case  of  a  community  of  interest,  a  partition  is 
necessary.^''  Lands  in  fee  may  be  decreed  in  satisfaction  of  ali- 
mony,^''' or  the  court  may  assign  as  such  the  use  for  life  of  part 
of  the  husband's  estate.^*  It  is  not  customary,  however,  to  dis- 
turb the  husband's  real  estate,  but  a  definite  money  allowance 
is  made  instead;  "indeed,"  says  Dickey,  J.,  "the  cases  are  very 
rare  where  the  fee  in  lands  held  by  the  husband  should  ever  be 
required  to  be  transferred  to  the  wife,  unless  she  has  some  special 
equity  in  that  particular  land,  arising  from  the  purchase  having 
been  made  with  her  money,  or  from  some  other  cause  substantially 
placing  the  husband  in  the  position  as  to  that  property  equivalent 
to  that  of  a  trustee  holding  in  his  name  for  the  w^ife,  or  in  a  posi- 
tion in  its  nature  equitably  equivalent  thereto.  In  such  cases, 
though  the  form  of  the  decree  may  be  that  of  adjusting  the  ques- 
tion of  alimony,  the  substance  is  more  in  the  nature  of  the  en- 
forcement of  a  trust, ' '  *^ 

With  respect  to  the  effect  upon  lands  of  a  decree  for  alimony 
payable  in  gross,  the  rule  does  not  seem  to  be  well  settled.^**  The 
volume  of  authority,  however,  holds  that  such  a  decree  will  operate 
as  a  lien  upon  the  lands  of  the  husband  located  in  the  count}' 
where  the  decree  is  rendered  or  docketed,  and  may  be  enforced  by 

63  Vanzant  V.  Vanzant,  23  111.  536 ;  66  Stewartson  v.  Stewartson,  15 
Gray   v.   Gray,   65   Ga.   193.  111.    145. 

64  Errissmann  V.  Errissniann,  25  111.  57  Wheeler   v.   Wheeler,    18   111.   39. 
136;  Keating  v.  Keating,  48  111.  242.  58  Keating  v.  Keating,  48  111.  241; 
Instead  of  the  injunction,  the  decree  Jolliff  v.  Jolliff,  32  111.  527. 
makes   the   alimony   a   lien   upon   his  69  Wilson  v.  Wilson,  102  111.  297. 
land,   and    he   may   be   compelled   to  60  For  a  further  discussion  of  this 
.secure  the  lien  further  by  mortgage.  subject    see    §  463. 

65  All  these  matters  are  the  sub- 
ject of  express  statutory  regulation. 
Consult  local  statutes. 


§518] 


ACTIONS   AND   PROCEEDINGS. 


545 


execution  levied  upon  such  lands  either  in  the  hands  of  the 
divorced  husband  or  his  grantee,  where  the}'  have  been  conveyed 
after  the  rendition  of  the  decree.®^ 

With  the  exceptions  hereafter  noted,  divorce  proceedings  are 
seldom  shown  in  abstracts  of  title,  save  as  they  may  incumber 
land  by  the  lien  for  alimony,  and  then  only  in  brief  and  general 
terms.  A  divorce  has  anotlier  important  effect  on  titles,  however, 
considered  in  respect  to  dower.  It  is  a  doctrine,  both  of  the 
common  law  and  of  tlie  statute,  that  the  dissolution  of  the  mar- 
riage relation,  ipso  facto  restores  the  parties,  legally  as  well  as 
socially,  to  tlie  same  relative  position  they  occupied  prior  to  enter- 
ing into  same.    One  of  the  incidents,  therefore,  is  loss  of  the  dower 


61  In  Chase  v.  Chase,  105  Mass. 
385,  it  was  held  that  a  judgment  for 
alimony  in  the  case  of  a  divorce  a 
vinculo,  or  from  bed  and  board,  cre- 
ates a  debt  of  record  in  favor  of  the 
wife,  and  that  she  is  entitled,  as  a 
creditor,  to  impeach  a  conveyance 
made  by  him  with  intent  to  defraud 
her.  It  is  said  by  the  Supreme 
Court  of  the  United  States  in  Barber 
v.  Barber,  21  How.  582,  that  when 
the  court,  having  jurisdiction  of  her 
suit,  allows  the  wife,  from  her  hus- 
band's means,  by  way  of  alimony,  a 
suitable  maintenance  and  support,  '  *  it 
becomes  a  judicial  dfebt  of  record 
against  the  husband,  and  is  as  much 
a  debt  of  record,  until  the  decree  has 
been  recalled,  as  any  other  judgment 
for  money  is."  And  see,  to  the  same 
effect,  Wetmore  v.  Wetmore,  149  N. 
Y.  520.  In  Prakes  v.  Brown,  2 
Blackf.  (Ind.)  295,  the  wife  obtained 
a  divorce,  and  a  judgment  for  the 
sum  of  $550  as  alimony.  By  virtue 
of  a  fieri  facias  issued  upon^  this 
judgment,  the  land  in  question  was 
sold,  and  the  complainant  was  the 
purchaser.  In  a  bill  in  chancery  the 
complainant  prayed  that  a  conveyance 
of  the  land  made  by  the  husband  to 
the  defendant  might  be  set  aside  as 
fraudulent  and  void.  In  the  opinion, 
Blackford,  J.,  says:  "It  is  said  that 
real  estate  is  not  liable  on  a  decree 
for  a  divorce  and  alimony.  The  an- 
WarvcUe  Abstracts — 35 


swer  to  this  is  that  here  is  a  judgment 
against  the  husband  for  a  certain 
sum  of  money,  rendered  by  a  court 
having  jurisdiction  of  the  cause,  and 
that  every  judgment  of  this  kind,  is 
by  statute,  a  lien  on  real  estate.  It 
is  not  for  this  court  to  look  beyond 
the  judgment  in  the  case  before  us. 
It  must  be  considered  as  having  the 
same  effect  as  all  other  judgments 
for  the  payment  of  money,  whilst 
it  stands  unreversed  and  remains  un- 
satisfied." The  statute  by  which 
judgments  became  liens  on  real  es- 
tate was  the  general  enactment : 
"Judgments  in  the  Circuit  Courts 
are  hereby  made  liens  on  the  real 
estate  of  the  defendant  or  defend- 
ants, from  the  day  of  the  rendition 
thereof,  in  the  county  where  such 
judgment  may  be  rendered."  Eev. 
Laws  Ind.  1824,  192.  In  Keyes  v. 
Scanlan,  63  Wis.  345,  the  complaint 
set  out  that  the  plaintiff  recovered 
a  judgment  for  divorce  against  her 
husband,  and  that  the  sum  of  $300 
alimony,  and  cost  of  suit,  were  ad- 
judged in  her  favor.  Section  2367 
of  the  Annotated  Statutes  of  Wis- 
consin provides  that,  upon  the  fail- 
ure to  pay  the  alimony  adjudged  to 
the  wife,  "the  court  may  enforce 
the  payment  thereof  by  execution 
or  otherwise,  as  in  other  cases."  In 
construing  this  language,  the  court 
say:    "There    are    very    satisfactory 


546  ABSTRACTS    OP    TITLE.  [§  518 

right  ol"  tlie  wile,^'^  and  to  siiow  a  full  and  complete  exposition  oi" 
title  an  appropriate  mention  of  a  divorce  seems  necessary  in  all 
eases  wliei-e  the  question  of  dower  would  properly  arise.  This  may 
be  accomplished  by  a  brief  reference  to  the  case  as  follows: 

Circuit  Court,  Cook  County. 

All.    *   ^  n  ^      Ca^e  No.  10,057. 

Albert  Gallaway,  n-,,  j      j- 

Bill  for  divorce, 
vs  ?■ 

,      ■   „  r     Januarij     20,     1881.       Decree     of 

Mary  A.  Gallaway.  ,.  j      ^       ui       j         -4 

'  divorce  rendered,  vnth  orders,  inter 

alia,   that    defendant   he,  and  she  is,  forever  barred  of  and  from 

all  right  and  claim  of  dower  in  and  to  the  lands  and  tenements  of 

said,  complainant. 

Costs  paid. 

A  decree  of  divorce,  however,  lias  no  retroactive  effect  except  as 
specially  provided  for  by  statute,  and  therefore  a  wife's  right  of 
dower  which  had  vested  prior  to  a  decree  is  not  thereby  divested 
unless  the  statute  so  specifically  declares.®' 

There  is  another  effect  produced  by  divorce  which  properly  finds 
mention  in  a  work  of  this  character.  As  has  been  shown  a  con- 
veyance to  husband  and  wife,  in  most  of  the  States,  produces  what 
is  known  as  an  estate  by  entirety,  that  is,  an  estate  similar  to  a 
joint  tenancy.^*  It  is  held  that  this  estate  is  destroyed  by  divorce, 
the  legal  unity  of  the  parties  being  broken,  and  that  the  former 
spouses  become  tenants  in  common.^^ 

In  many  cases  where  a  divorce  is  pending,  prudence  would  sug- 
gest that  a  brief  allusion  be  made  to  it,  yet  the  commencement  and 
pendency  of  such  action,  where  the  bill  merely  sets  forth  the  de- 
fendant's lands  as  affecting  the  amount  of  alimony  to  be  allowed, 
and  neither  asserts  nor  seeks  any  right  in  respect  to  them,  affords 
no  notice  lis  pendens  sufficient  to  affect  the  rights  of  purchasers 
from  such  defendant.  Where,  however,  the  bill  sets  up  some  specific 

reasons  for   saying  that   the   divorce  decree   is    rendered    in    favor   of   the 

judgment  stood  upon  the  same  footing  wife  for  the  misconduct  of  the  hus- 

as    ordinary    money    judgments,    and  band.     Consult  local  statutes, 

became  a  lien  upon  the  real  estate  of  63  Van   Cleat  v.   Burns,   118   N.  Y. 

the  debtor,  liable  to  execution,  as  .soon  549 ;    and    see,   Alt    v.    Banholzer,    39 

as  docketed."  Minn.  511. 

62Burdick  v.  Briggs,  11  Wis.  126;  64  Consult,  §  241,  supra. 

Eice    V.    Lumley,    10    Ohio    St.    596;  66  Steltz  v,  Shreck,  128  N.  Y.  263; 

Given  v.  Marr,  27  Me.  212;  Miltmore  and   see,   Harrer  v.  Wallner,   80    111. 

V.  Miltmore,  40  Pa.  St.  151.    In  some  197;  Lash  v.  Lash,  58  Tnd.  526. 
States  dower  is  preserved   where  the 


§  519  J  ACTIONS   AND   PROCEEDINGS.  547 

claim  of  right  iu  the  lands,  or  where  any  part  of  them  are  asked 
to  be  assigned  for  alimony,  or  any  other  right  is  asserted  in  respect 
to  them  or  any  other  relief  asked  in  regard  to  them,  it  would  seem 
that  the  doctrine  of  lis  pendens  will  apply;  and  any  one  who  pur- 
chases such  property  during  the  pendency  of  the  action  will  be 
bound  by  the  judgment  subsequently  rendered  therein.^^ 

§  519.  The  Right  of  Eminent  Domain.  The  general  subject  of 
eminent  domain  has  been  alluded  to  in  a  former  part  of  this  book, 
but  may  be  advantageously  referred  to  at  this  place  in  connection 
with  its  practical  application  to  the  alienation  of  land.  The  right 
of  eminent  domain  is  defined  to  be  the  ultimate  right  of  the 
sovereign  power  to  appropriate  not  only  the  public  property, but  the 
private  property  of  all  persons  within  the  territorial  sovereignty, 
to  public  purposes,^'''  and  though  the  exercise  of  the  right  usually 
affects  only  the  use  and  enjoyment  of  the  land  and  not  the  fee,^' 
it  is,  in  effect,  a  perpetual  right  of  user  almost  equal  in  dignity  to 
the  fee,  and  in  some  States  it  contemplates  a  transfer  of  the  fee 
itself.^^  This  right  is  variously  exercised  by  the  State,  both  in  its 
own  behalf,  as  for  the  acquisition  of  land  for  State  institutions  or 
improvements,  roads,  canals  and  other  works  of  a  strictly  public 
character,  and  in  behalf  of  corporations  for  works  and  improve- 
ments of  a  quasi  public  character,  but  it  is  a  fundamental  principle 
that  any  lands  of  the  citizen,  for  whatever  purpose  required,  shall 
not  be  taken  or  damaged  for  public  use,  without  just  compensation. 
When  land  is  taken  under  this  right  and  in  fee,  it  is  freed  from 
aU  contingent  interests,  liens  and  equities,  including  inchoate 
rights  of  dower,  judgment  liens,  etc.'** 

In  the  examination  of  titles  questions  growing  out  of  the  exercise 
of  this  right  are  often  presented  where  there  has  been  an  abandon- 
ment of  the  lands  appropriated,  or  a  diversion  from  the  original 
purpose.  Condemnations  are  also  shown  incidentally,  as  where 
rights  of  way  are  acquired  over  tracts  which  form  the  subject  of  an 
examination. 

66  Sapp  V.  Wightman,  103  111.  150 ;  69  Nicoll    v.    R.    R.    Co.,    2    Kern. 

Wilkinson  v.  Elliott,  43  Kan.  590.  121;   People  v.  Mauran,  5  Den.  389; 

BTVattel's  Law  of  Nations,   b.    1,  Hej^vard  v.  Mayor  of  N.  Y.,  3  Seld. 

ch.  20;  Charles  River  Bridge  v.  War-  214;  Troy  v.  R.  R.  Co.,  42  Vt.  265; 

ren  Bridge,  11  Pet.  641.  Challis  v.  R.  R.  Co.,  16  Kan.  17. 

68  R,    R.    V.    Burkett,    42    Ala.    83 ;  70  Moore  v.  Aldermen,  etc.,  4  Sand. 

Hatch  V.   R.   R.,   18   Ohio,  92;   Mor-  456;  affirmed,  4  Sel.  110;  Watson  v. 

ris    V.    Schallsville,    6    Bush    (Ky.),  R.  R.,  47  N.  Y.  157. 
671. 


548  ABSTRACTS    OF    TITLE.  [§  520 

§  520.  Proceedings  for  Condemnation.  Provision  is  made  iu 
oviTV  State  for  the  I'Oiidemiialion  of  land,  and  the  compensation 
to  he  paid  for  or  in  respect  of  the  property  soug^ht  to  he  appro- 
pi-ialed  or  damaged,  when  no  agreement  ean  he  affected  hy  the  par- 
ties interested;  or  in  ease  the  owner  of  the  property  is  incapable 
of  consenting;  or  liis  name  or  residence  is  unknown;  or  he  is  a 
non-resident  of  the  State. 

'riif  general  preeedure  is  ver}-  uniform,  though  the  instrumen- 
t<ililies  used  are  not  alike  in  all  the  States.  The  proceedings  gen- 
erally contemplate  an  investigation  by  a  jury,  and  an  assessment 
and  award,  which,  when  regularly  accomplished  and  confirmed,  has 
the  etfect  of  divesting  the  title  of  the  former  owner  and  clothing 
the  corporation  with  such  title  as  the  law  imports.  This  is  etfected 
by  a  petition  addressed  to  a  court  of  competent  jurisdiction,  or  to 
a  judge  thereof,  either  in  term  time  or  vacation,  setting  forth,  by 
i-eference,  the  authority  in  the  premises  of  the  party  .seeking  to 
take  or  damage  the  property  so  required;  the  purpose  for  which 
said  property  is  sought  to  be  taken  or  damaged;  a  description  of 
the  property ;  the  names  of  all  persons  interested  therein  as  appear- 
ing of  record,  if  known,  or  if  not  known  stating  the  fact,  and  if  the 
proceedings  seek  to  affect  the  property  of  persons  under  guardian- 
ship the  guardians,  or  conservators  of  persons  having  conserva- 
tors, must  also  be  made  parties  defendant,  and  if  married  women 
their  husbands  must  be  made  parties.  Persons  interested  whose 
names  are  unknown  may  be  made  parties  by  the  description  of  the 
unknown  owners;  the  latter  fact  being  presented  by  atiRdavit.  Notice 
is  given  to  the  parties  interested  by  personal  or  substituted  service 
and  a  hearing  is  had  either  before  the  judge  to  whom  the  petition 
was  addressed,  or  commissioners  appointed  by  him,  and  when  heard 
by  the  judge  a  jury  ma.y  be  impaneled  to  ascertain  the  damages.  The 
record  in  the  matter  should  substantially  appear  in  the  abstract, 
and  must  be  sufficiently  full  to  disclose  all  jurisdictional  facts  and 
that  the  power  has  been  exercised  according  to  the  direction  of 
law.  When  the  proceedings  are  conducted  by  commissioners  a 
report  is  made  to  the  court  granting  the  authority,  and  this  report 
substantially  embodies  all  that  is  necessary  to  show  complete 
divesture,  while  the  court  roll,  when  such  proceedings  are  conducted 
primarily  before  a  court,  or  on  appeal,  will  also  serve  the  same  end. 

If  the  proceedings  are  regular  in  form  the  synopsis  may  be 
considerably  condensed,  and  when  such  proceedings  are  displayed 
oidy  incidentally,  for  the  purpose  of  explaining  the  situation  of 
the  la)id  and  not  to  show  the  title  of  tlie  condemned  tracts,  this 
course  is  recommended.     In  such  case  brief  references  to  the  pcti- 


§  520]  ACTIONS   AND   PROCEEDINGS.  549 

tion,  the  appearance  of  parties,  the  verdict  and  the  judgment  of  the 
court,  are  all  that  will  be  necessary.     Thus: 

In  the  County  Court  of  Cook  County. 
Central  Railway  Com-      ]      Case,  1,509. 

pany  |      Petition,  filed  July  1,  1903,  for  the 

vs.  ^-condemnation  of  the  South  100  feet 

James  Thompson.  J  of  the  North  West  quarter  of  Section 

10,  Toivn  39  North,  Range  13  East  of  the  3d  Principal  Meridian, 

for  the  purposes  of  a  railroad. 

Appearance  of  defendant  entered  Aug.  4.,  1903. 
Case  heard  Oct.  15,  1003  (Law  Rec.  12,  pg.  25).     Verdict  ren- 
dered wherein  the  jury  finds  that  the  petitio7ier  do  take  from  the 
owner  the  following  property,  io-wit:  a  strip  of  land  100  feet  in 
width  over  and  across  the  South  side,  etc.  [set  out  the  finding]. 

Ordered,  hy  the  court,  that  petitioner  have  judgment  of  con- 
demnation herein,  and  that  upon  the  payment  hy  it  to  the  County 
Treasurer  of  said  county,  of  the  sum  aforesaid,  that  said  Central 
Railway  Company  do  enter  into  possession  of  the  said  land  and  hold 
the  same  for  the  purposes  provided  hy  law. 

It  will  frequently  be  advisable  to  show  condemnation  proceed- 
ings where  land  is  taken  for  the  opening  or  widening  of  streets,  and 
the  result  is  a  change  in  the  shape  or  dimensions  of  platted  lands. 
AVhere  provision  is  also  made  for  an  assessment  of  benefits  as  well 
as  compensation  for  damage,  it  will  become  necessary  to  show  the 
essential  features  of  the  proceeding  and  the  extent  of  the  lien 
thereby  occasioned.  Brief  general  recitals  will,  however,  be  suffi- 
cient.   As  per  example : 

In  Superior  Court  of  Cook  Co. 
r,.,       f  r,.-  ^      Case,  No.  79,050. 

tity  Of  Chicago  Petition  filed  June  2,  1906,  repre- 

vs  V 

^^  ,  *  [sents  that  071  March  28, 1906,  the  City 

Unknown  Owners.  \^  i     j       •-,  r^-.  ■, 

'  Comicil  of  said  City  passed  an  or- 
dinance providing  that  Fairmount  Avenue  he  opened  and  widened 
from  West  28th  Street  to  Wilson  Avenue,  hy  condemning  therefor 
the  East  16^2  feet  of  Lots  10,  11,  12  and  13,  in  Block  4  of  White 
&  Black's  suhdivision  of  the  W.  1/2  of  N.  E.  14  of  Sec.  16,  T.  24, 
N.  R.  13,  and  other  property. 

Attached  to  petition  is  a  copy  of  said  ordinance,  duly  verified, 
wherein  it  is  provided  that  said  improvement  he  made  hy  special 
assessment  to  he  levied  upon  the  property  henc filed. 


550  ABSTRACTS    OK    TITLE.  [§  520 

Prdj/s  ihdt  ihc  just  compensation  to  be  made  for  property  taken 
or  damaged  he  ascertained  by  a  jury. 

Feb.  14,  1907,  (Law  Rcc.  45,  pg.  276)  Verdict,  wherein  the  jury 
find  the  just  compensation  to  he  paid  to  the  owners  of  the  East 
16^2  f^c^  of  said  Lots  to  he  ^75.00  for  each  lot. 

Judgment  on  the  verdict  for  said  respective  sums. 

Assessment  roll  filed  June  10,  1.907,  wherein  Lots  10,  11,  12  and 
13  are  each  assessed  the  su7yi  of  $125.00. 

July  7,  1907,  (Law  Bee.  45,  pg.  488)  Assessment  confirmed. 

§  521.  Constniction  of  Wills.  The  validity  of  a  will  may  be 
contested  in  equity  as  well  as  l)efore  the  probate  court,'^  yet  this 
is  seldom  done,  except  on  appeal,  and  the  aid  of  a  court  of  equity 
is  usually  invoked  only  to  pass  upon  and  construe  indefinite  and 
uncertain  passages,  or  to  direct  the  executor  in  the  execution  of 
indeterminate  or  insufficiently  expressed  trusts.  Where  any  doubt 
arises  as  to  the  proper  construction  of  a  will,  or  as  to  the  rights  of 
parties  thereunder,  resort  is  usually  had  to  a  court  of  equity  for  a 
construction  and  decree  for  distribution,  and  the  decree  so  made, 
so  far  as  it  relates  to  land,  either  directly  or  by  just  implication, 
becomes  an  essential  muniment  of  title,  equal  in  importance  to  the 
will  itself,  and  of  which,  as  an  expression  of  the  testator's  inten- 
tion, it  forms  an  integral  part. 

71  Duncan  v.  Duncan,  23  111.  264; 
Flinn  v.  Owen,  68  111.  111. 


CHAPTER  XXIX. 


TAXES  AND   TAX   TITLES. 


§  522.  Definition — Nature    of    taxing       §  532. 

power.  §  533. 

§  523.  Subjects  of  taxation.  §  534. 

§  524.  Lien  of  taxes.  §  535. 

§  525.  Tax  titles.  §  536. 

§  526.  Nature  of  tax  titles,  §  537. 

§  527.  Proceedings    incident     to  tax-       ^  538. 

ation.  §  539. 

§  528.  Description  of  land — Assessor's 

plats.  §  540. 

§  529.  Sale  for  non-payment.  §  541. 

§  530.  Forfeitures. 

§  531.  Tax  sales — Tax  payer  as  pur- 
chaser. 


Eights   of   purchasers. 
Redemption. 
Certificate   of  sale. 
Tax    deeds. 
Continued. 
Formal  parts. 
Effect  of  deed  as  evidence. 
Tax  deed — Possession — Limita- 
tion. 
Tax   abstracts. 
Special  assessments. 


§  522.  Definition — Nature  and  Scope  of  the  Taxing  Power.    By 

the  concurrent  opinion  of  lawyers,  judges,  lexicographers,  and 
political  economists,  as  well  as  by  the  general  and  popular  under- 
standing, taxes  are  burdens  or  charges  imposed  by  the  legislative 
power,  upon  persons  or  property,  to  raise  money  for  public  pur- 
poses or  to  accomplish  some  governmental  end.^  This  power  is 
vested  wholly  in  the  legislature,  though  municipalities  may  exercise 
it  by  a  special  delegation  of  authority,  and  is  unrestricted  except 
when  it  is  opposed  to  some  provision  of  the  Federal  or  State  con- 
stitution.^ It  extends  to  every  trade  or  occupation,  to  every  object 
of  industry,  use,  or  enjoyment,  and  to  every  species  of  possession.^ 
The  right  of  taxation  has  for  its  foundation  the  principle  that  the 
citizen  shall  contribute  to  the  support  of  the  government  which 
protects  his  person  and  property,  in  just  proportion  to  the  value 
of  the  property  protected;*  and  equality,  so  far  as  is  practicable. 


1  Hanson  v.  Vernon,  27  Iowa,  28 ; 
Mitchell  V,  Williams,  27  Ind,  62; 
Blackw,    Tax    Tit.    1. 

2  People  V.  Marshall,  1  Gilm. 
(111.)  672;  Wider  v.  East  St.  Louis, 
55  111.  133. 


3  Curry  v.  Spencer,  14  Reporter, 
527;  DePauw  v.  New  Albany,  22 
Ind.  204;  Anderson  v.  Kerns  Drain- 
ing Co.,  14  Ind.  199. 

4Dunleith  v.  Reynolds,  53  111. 
45;  In  re  Van  Autwt'rp,  5(i  N.  Y.  265, 

551 


552  ABSTRACTS   OF   TITLE,  f§  522 

is  its  distinguishing  cliaracteristic*  While  it  is  scarcely  possible 
to  attain  absolute  equality  in  all  cases,  or  benefits  commensurate  with 
the  burden  of  taxes  imposed,  yet  the  principle  upon  which  the 
approximation  to  equality  is  to  be  maintained  must  be  preserved 
inviolate  in  this,  that  all  property  subject  to  taxation  shall  be  uni- 
fi)riuly  assessed,  according  to  value;  a  rule  applieabU'  to  all  taxa- 
tion, wild  her  for  general,  local  or  special  jjurposes.^ 

Tlie  legislature,  as  we  have  seen,  is  the  sole  source  and  repository 
of  the  taxing  j)Ower;  on  the  other  hand,  the  counties  and  other 
numifipal  divisions  are  mere  auxiliaries  of  the  government,  estab- 
lished simply  for  the  more  eft'ective  administration  of  justice,  and 
the  power  of  taxation,  as  confided  to  them,  is  a  delegated  trust,  and 
is  to  be  strictly  construed.  They  act,  not  by  virtue  of  inherent 
power,  but  as  mere  agencies  of  the  Stated  the  whole  theory  of  our 
system  of  taxation  being  based  upon  the  idea  that  it  is  prepared  by 
the  representatives  of  the  people,  upon  due  deliberation  and  reflec- 
tion, and  when  thus  prepared  for  State  purposes,  it  may  be  safely 
applied  by  the  counties  and  other  local  agencies  of  the  common- 
wealth. 

§  523.  Subjects  of  Taxation.  Primarily  all  property  is  subject 
to  a  just  proportion  of  the  burdens  of  taxation  in  return  for  the 
protection  which  the  State  affords,  but  the  legislature  may  grant 
an  exemption  to  certain  classes,  and  such  grant  may  be  in  the 
nature  of  a  contract  and  therefore  inviolable.  But  such  grant  must 
be  expressed  in  clear  and  unmistakable  language,  and  can  not  be 
aided  b}"  presumption  or  inference,*  while  all  language  creating  an 
exemption  is  to  be  strictly  construed.^ 

An  inheritance  or  succession  tax  is  now  levied  in  most  of  the 
States,  Strictly  considered,  it  is  not  a  tax  on  property  but  upon 
the  exercise  of  the  right  to  transmit  property  and  is  not  governed 

6  Sherlock  v.  Village  of  Winnetka,  7  K.  R,  Co.  v.  Washington  County, 

60  111.  530;  Holbrook  v.  Dickinson,  46  30   Gratt.    (Va.)    471;    U.   S.  v.   New 

111.  285;  Weeks  v.  Milwaukee,  10  Wis.  Orleans,  98  U.  S.   (8  Otto)   381. 

242 ;    Attorney-General    v.    Plankroad  8  Minot    v.    E.    R.    Co.,    18    Wall. 

Co.,    11   Wis.    35.  206;  Butler's  Appeal,  73  Pa.  St.  448; 


ePeay  v.  Little  Rock,  32  Ark 
31;  Chicago  v.  Lamed,  34  111.  253 
McCorniack  v.  Patch  in,  53  Mo.  33 
Weeks  v.  Milwaukee,  10  Wis.  242 
People  V.  Bradley,  39  111.  130;  Ot 
tawa  V.  Spencer,  40  111.  211;  Attor 
ney-General  v.  Plankroad  Co.,  11  Wis 
35;  Soens  v.  Racine,  10  Wis.  271. 


R.  R.  Co.  V.  Maguire,  49  Mo.  490. 

9  Commissioners  v.  Brackenridge,  12 
Kan.  114;  Manf.  Co.  v.  East  Saginaw, 
19  Mich.  259;  Methodist  Church  v. 
("hicago,  26  111.  482. 


§  524]  TAXES  AND  TAX  TITLES.  OO'd 

hy  the  usual  laws  relating  to  taxation.^"  Such  tax  is  regarded 
much  ill  the  light  of  an  excise  duty  imposed  by  the  State  for  the 
privilege  of  succeeding  to  property  on  the  death  of  the  owner,!* 
and  action  relative  thereto,  in  cases  where  such  taxes  are  imposed, 
is  generally  shown  in  the  abstract  of  proceedings  had  in  the  probate 
court. 

§  524.  Lien  of  Taxes.  The  lien  for  taxes  attaches  to  all  land 
subject  to  taxation,  annually,  upon  some  day  stated,  the  time  being 
different  in  nearly  every  State,  and  continues  until  the  tax  is  paid.^^ 
Where,  for  instance,  the  lien  attaches  on  the  first  day  of  May,  and 
the  property  is  conveyed  subsequent  to  that  date,  it  is  incumbered 
by  the  lien,  and  unless  a  special  exception  is  made  in  the  deed  the 
vendor  is  liable  upon  his  covenants  for  the  payment  of  the  tax.  It 
is  also  a  statutory-  provision  in  many  States,  that  taxes  assessed 
on  personal  property  of  the  same  owner  becomes  a  lien  on  his  real 
estate.!^ 

Many  examiners  make  no  search  for  information  concerning 
current  taxes,  yet  this  is  one  of  the  things  of  which  intending  pur- 
chasers should  be  apprised.  Taxes  are  due  and  payable  at  a  stated 
time  each  year  and  when  the  date  of  the  search  is  after  this,  time, 
and  before  that  fixed  for  the  sale  of  lands  for  taxes,  an  examination 
should  be  made  to  ascertain  the.  fact  of  payment  or  non-payment. 
The  result  may  be  embodied  in  a  brief  note  among  the  appendices, 
as  follows : 

Note. — It  does  not  appear  from  the  collector's  ivarrant  that  the 
taxes  for  the  year  1903,  levied  on  the  property  described  in 
the  caption  [or  whatever  piece  may  be  delinquent]  have 
been  paid. 

A  general  statement  that  the  examiner  finds  no  unpaid  taxes  may 
be  embodied  in  the  final  certificate  **  but,  if  desired,  the  fact  of 
payment  may  be  shown  affirmatively  by  a  note  similar  to  the 
foregoing,    and    whenever    the    title    is    complicated    by    adverse 

10  Ee  McKennan,  25  S.  D.  369,  126  12  Binkert   v.   Wabash   Ey.   Co.,   98 

N.  W.  611,  33  L.  R.  A.   (N.  S.)  606;  111.  205. 

Eodman  v.  Selligman,  130  Ky.  88,  113  13  Union    Trust    Co.    v.    Weber,    96 

S.  W.  61,  33  L.  E.  A.   (N.  S.)  592.  111.  346. 

llKnowlton    v.    Moore,    178   TJ.    8.  14  See   §103. 
41  ;  Nettleton's  Appeal,  76  Conn.  235, 
56  All.  565. 


554  ABSTRACTS   OF   TITLE,  [§  524 

claims  or  interests  it  is  always  well  to  show  who  paid  the  tax. 
Thus : 

Note. — On  the  collector's  books  for  the  year  1903  the  general  taxes 
levied  on  the  land  described  in  the  caption  hereto,  are 
marked  as  having  been  paid  May  14,  190i,  by  Thomas 
Brotcn. 

§  525.  Tax  Titles.  A  tax  title  is  a  purely  technical,  as  contra- 
distinguished from  a  meritorious  title,  and  depends  for  its  validity 
upon  a  strict  compliance  with  all  the  requirements  of  law.^^  No 
presumption  can  be  raised  to  cure  radical  defects  in  the  proceed- 
ings, and  the  proof  of  regularity  devolves  on  the  person  asserting 
the  title.^^  If  the  land  claimed  under  such  a  title  was  subject  to 
taxation,  and  the  proceedings  under  the  law  have  been  regular, 
and  the  owner  has  failed  to  redeem  within  the  time  limited  by  law, 
then  the  whole  legal  and  equitable  estate  is  vested  in  the  purchaser, 
and  a  new  and  perfect  title  is  established.^"^  This  results  fi'om  the 
paramount  authority  of  the  State  to  levy  the  tax  and  coerce  its 
payment  by  subjecting  the  property  to  sale,  yet  owing  to  the  com- 
plexity of  the  procedure  employed,  and  the  careless,  ])ungling  or 
ignorant  manner  in  which  it  is  often  used,  as  well  as  the  many 
grave  questions  which  may  arise  even  on  perfect  service,  a  tax 
title  is  regarded  as  among  the  poorest  evidences  of  the  ownership 
of  land,  and  is  always  taken  with  suspicion  and  viewed  with 
jealousy. 

Though  the  end  to  be  attained  by  the  sale  of  the  land,  to  wit, 
the  satisfaction  of  the  levy,  is  the  same  in  every  State,  yet  no  two 
States  seem  to  pursue  exactly  the  same  methods  in  arriving  at 

16  Altes   V.    Hinckler,    36    111.    265;  to   be   done,   or  prescribes   the   form, 

Whitmore    v.    Lamed,    70    Me.    276;  time,  and  manner  of  doing  anything, 

Charles  v.  Waugh,  35  111.  315;  Hewes  such  thing  must  be  done,  and  in  the 

T.  Eeis,  40  Cal.  225;  Rivers  v.  Thomp-  form,  time  and  manner  prescribed,  or 

son,  43  Ala.  633.  the  title  is  invalid ;  and  in  this  respect 

16  Oliver  v.  Robinson,  58   Ala.  46.  the   statute   must  be   strictly,   if  not 

17  Atkins  v.  Himnan,  2  Gilm.  (111.)  literally,  complied  -vvith;  (2)  but  in 
437;  Smith  v.  Messer,  17  N.  H.  420;  determining  what  is  required  to  be 
Dunlap  V.  Gallatin  Co.,  15  111.  7 ;  Jar-  done,  the  statute  must  receive  a  rea- 
vis  V.  Peck,  19  Wis.  74;  Cram  v.  Cot-  sonable  construction;  and  where  no 
ting,  22  Iowa,  411.  The  following  particular  form  or  manner  of  doing  a 
principles,  or  rules,  for  testing  the  thing  is  pointed  out,  any  mode  which 
validity  of  tax  titles,  appear  to  be  effects  the  object  with  reasonable  cer- 
f airly  deducible  from  the  reported  tainfy  is  sufficient:  Hall,  J.,  in  Chan 
cases:    O)   Where  the  statute  under  dlcr  v.  Spear,  22  Vt.  388. 

which  the  sale  is  made  directs  a  thing 


§  526]  TAXES   AND    TAX   TITLES.  555 

this  end,  but  whatever  be  the  methods  employed,  there  must  at 
least  be  a  valid  judgment  or  corresponding  feature ;  a  valid  precept 
authorizing  the  sheriff,  auditor,  or  other  officer  to  make  the  sale ;  ^* 
and  a  proper  conveyance  of  the  land  from  such  officer  or  other 
authorized  person.  These  are  essential  to  the  prima  facie  validity 
of  the  title,  and  none  of  them  can  be  dispensed  with.^^  The  basis 
of  the  title  is,  of  course,  a  legal  tax,  and  no  title  passes  by  a  deed 
when  the  whole  or  any  part  of  the  tax  on  which  it  is  founded  was 
illegal. ''®  A  sale  of  land  for  taxes  frees  it  in  the  hands  of  the 
purchaser  from  all  liens  or  liabilities  for  taxes  of  previous  years ;  ^^ 
divests  all  prior  liens  and  incumbrances ;  ^^  bars  the  inchoate  right 
of  dower ;  ^^  and  vests  in  such  purchaser  a  new,  original,  and  un- 
impeachable title  in  fee  simple.^*  Such,  at  least,  is  the  accepted 
doctrine  in  a  majority  of  the  States,  though  there  are  some  in  which 
it  may  not  prevail.** 

§  526.  Nature  of  Tax  Titles — Dependent  or  Independent.    A  tax 

title,  though  bearing  some  resemblance  to  titles  derived  under 
judicial  and  execution  sales,  differs  in  this,  that  the  latter  are 
strictly  derivative  titles,  and  dependent  not  only  on  the  legality 
of  the  procedure  of  transfer,  but  upon  the  acts  of  former  owners. 
A  tax  title,  on  the  contrary,  from  its  very  nature,  has  nothing 
to  do  with  the  previous  chain  of  title,  nor  does  it,  in  any  way,  con- 
nect itself  with  it.  The  person  asserting  it  need  go  no  further  than 
his  tax  deed,  and  the  former  title  can  neither  assist  nor  prejudice 
him.  The  sale  operates  upon  the  land  and  not  upon  the  title 
by  which  it  had  theretofore  been  held.  It  matters  not  how  many 
different  interests  may  have  been  connected  with  such  title,  for  if 
the  sale  has  been  regularly  made,  the  land,  accompanied  by  a  new 
and  exclusive  legal  title,  goes  to  the  purchaser.    No  covenant  run- 

18  The  precept,  though  not  techni-  22  Dunlap  v.  Gallatin  Co.,  15  111.  7 ; 

cally  process  within  the  constitutional  Cram  v.  Cotting,  22  Iowa,  411. 

provision  requiring  all  process  to  run  23  .Jones  v.  Devore,  8  Ohio  St.  430. 

in  the  name  of  the  people,  performs  Local  statutes  may  modify  or  change 

the  office  of  an  execution,  and  is  the  the  doctrines  stated  in  the  text, 

authority  under  which  the  officer  sells:  24  Turner  v.   Smith,   14  Wall.  553; 

f^agan  v.  Connelly,  107  111.  458.  Osterberg  v.  Union  Trust  Co.,  93  U.  S. 

19Holbrook    v.    Dickinson,    46    111.  424;  Schaeffer  v.  People,  60  111.  179. 

285.  25  The  statute  usually  provides  for 

20Dogan   v.   Griffin,   51   Miss.   782;  a   fee   simple.     It   is  held   in   several 

McLaughlin  v.  Thompson,  55  111.  219.  States,  however,  that  the  grantee  of  a 

21  Bowman  v.   Thompson,  36  Iowa,  tax    deed    takes    only    the    title    and 

505;  Preston  V.  Van  Gordor,  31  Iowa,  estate    of    the    former    owner.      See 

250;  Knox  v.  Leidgen,  23  Wis.  292.  Sheaf  v.  Wait,  30  Vt.  735. 


556  ABSTRACTS    OF    TITLE.  [§  526 

iiing  with  the  land,  nor  warranty,  or  other  incident  to  the  title  as 
it  formerly  stood,  passes  to  the  purchaser,  but  he  takes  it  by  a 
lunv,  independent  and  paramount  grant,  which  extinguishes  the 
old  title  and  all  the  equities  dependent  upon  it.^® 

The  statute  usually  pronounces  the  new  title  thus  acquired  a 
fee,  but  this  would  legally  follow,  even  though  the  statute  were 
silent,  where  no  other  estate  is  reserved  in  the  deed.  It  must  be 
understood,  however,  that  the  clause  of  the  statute  which  provides 
that  a  conveyance  resulting  from  a  sale  shall  vest  in  the  grantee 
an  "absolute  estate  in  fee  simple"  does  not  mean  that  such  estate 
shall  vest  in  the  grantee,  notwithstanding  the  fact  that  the  law 
has  not  been  complied  with  in  making  the  sale,  but  refers  merely 
to  the  quantity  of  the  estate  conveyed  as  distinguished  from  a 
lesser  estate.^' 

§  527.  Proceedings  Incident  to  Taxation.  Where  a  statute  re- 
([uires  a  scries  of  acts  to  be  performed  before  the  owners  of  prop- 
erty are  properly  chargeable  with  the  tax,  such  acts  are  conditions 
precedent  to  the  exercise  of  the  power,  and  all  the  requirements 
of  the  statute  must  be  complied  with  or  the  tax  will  be  invalid. ^^ 
These  proceedings  relate  to  the  valuation,  assessment,  listing,  re- 
turns, etc.,  and  do  not,  as  a  rule,  properly  eome  within  the  scope 
of  the  examiner's  duties.  They  are  not  usually  shown  in  the  ab- 
stract, unless  there  has  been  a  special  direction,  and  when  required 
are  usually  made  the  subject  of  a  separate  and  special  examination. 
When  a  tax  deed  is  relied  upon  as  the  foundation  of  title,  all  the 
antecedent  steps  become  material,  and  should  be  shown,  but  this  is 
the  only  instance  in  which  it  is  done.  Mere  irregularities,  not 
going  to  the  groundwork  of  the  tax,  do  not  vitiate  such  proceed- 
ings,^^ and  are  cured  by  special  statutes  of  limitation  which  exist 
in  all  the  States.^**     The  .subject  is  too  vast  to  open,  even  in  a 

26  Neiswanger  v.  Gwynne,  13  Ohio,  thereto.  Consult  local  statutes  for  the 
74;  do.  15  Ohio,  367;  Eoss  v.  Bar-  effect  of  tax  deeds  and  the  quantity 
land,  1  Pet.  664;  Blackwood  v.  Van  and  quality  of  the  estate  conveyed. 
Vliet,  30  Mich.  120.  See  Blackw.  on  28  Hewes  v.  Kcis,  40  Cal.  22.'5 ;  Eiv- 
Tax  Titles  for  a  very  elaborate  dis-  ers  v.  Thompson,  43  Ala.  633 ;  Abbott 
cussion,  p.  *  535  et  seq.  v.  Doling,  49  Mo.  302. 

27  Steeple  v.  Downing,  60  Ind.  478.  29  R.  R.  Co.  v.  Morris,  7  Kan.  210; 
As  the  statute  provides  the  title  to  Greene  v.  Lunt,  58  Me.  518;  Parker 
be  passed,  it  also,  as  a  rule,  states  v.  Sexton,  29  Iowa  421 ;  Thatcher  v. 
how  that  title  shall  be  given  in  regard  People,  79  111.  597. 

to  prior  liens  and  incumbrances,  and  30  See  Thomas  v.  Stickle,  32   Iowa, 

sometimes    makes    the    sale    subject       71. 


§  529]  TAXES   AND    TAX   TITLES.  557 

general  way,  and  the  reader  must  be  referred  to  technical  works 
on  tJie  subject. 

§  528.  Description  of  Land— Assessors '  Plats.  Where  lands  are 
listed  or  assessed  for  taxation  they  must  ordinarily  be  described 
by  reference  to  the  government  surveys,  or,  if  divided  into  lots, 
then  by  reference  to  authenticated  plats.  The  subject  of  private 
subdivision  has  already  been  considered  in  other  parts  of  the  work, 
but  there  also  exists  in  many,  perhaps  all,  of  the  States,  a  method 
of  official  subdivision  for  the  more  convenient  and  accurate  pur- 
poses of  taxation.  The  power  to  make  these  subdivisions  is  usually 
delegated  to  the  assessor  but  is  exercised,  as  a  rule,  only  when  land 
can  not  be  otherwise  described  than  by  noting  the  metes  and 
bounds.  The  statute  is  usually  very  explicit  in  regard  to  assessors ' 
plats  and  subdivisions,  and  ever}^  material  requirement  must  be 
complied  with  to  give  validity  to  the  plat  or  any  assessment  of 
any  of  the  divisions  thereof.  The  attention  of  the  examiner  is 
therefore  called  to  these  plats  whenever  they  appear  in  the  abstract, 
and  the  facts  of  conformity  and  sufficiency  of  description  should  be 
satisfactorily  shown.  Both  the  exact  location  and  quantity  must 
be  manifest,  and  the  plat  will  usually  be  fatally  insufficient  so 
far  as  the  subdivision  of  the  tract  for  the  purpose  of  description 
of  its  parcels  for  taxation  is  concerned,  if  wanting  in  these  par- 
ticulars.'^ 

§  529.  Sale  for  Non-payment.    Taxation  is  regulated  by  statute, 

but  the  right  is  inherent  in  the  government,  and  while  summary 
remedies  are  given  by  law,  yet  taxes  when  assessed  become  a  per- 
sonal debt,  to  be  collected  by  any  of  the  legal  methods  incident 
thereto,  should  the  government  choose  to  resort  to  such  a  remedy .'^ 
Usually,  however,  the  payment  of  a  tax  is  enforced  by  a  sale  of  the 
land  upon  which  it  has  been  imposed.  The  methods  employed  are 
too  various  to  attempt  special  mention,  every  State  providing  a 
special  pro^'cdure  for  this  purpose,  and  the  subject  can  only  be 
treated  generally.  A  tax  is  not  an  ordinary  debt,  howevei-.  It  takes 
precedence  of  all  other  demands,  and  is  a  charge  upon  the  prop- 
erty, without  reference  to  the  matter  of  ownership.  It  grows  out 
of  the  perpetual  lien  which  the  State,  by  virtue  of  its  sovereignty, 
has  upon  all  taxable  lands  within  its  limits,  and  the  property  may 

81  See  People  v.  Reat,  :07  111.  581.       latin  Co.,  15  111.  7;  Rinkert  v.  Ry.  Co., 
32  Mayor  of   Jonesboro   v.   McKee,       98  111.  205. 
2  Yerg.  (Tenn.)  167;  Dunlap  v.  Gal- 


558  ABSTRACTS   OF   TITLE.  [§  529 

be  seized  and  sold,  although  there  may  be  prior  liens  or  incum- 
brances upon  it,  and  payment  enforced  to  the  exclusion  of  all  other 
creditoi-s.*^  Whatever  be  the  methods  employed,  the  proceedings 
are  summary  in  their  nature  and  the  requirements  of  law  must  be 
strictly  pursued  or  the  whole  transaction  will  be  void.^*  When 
special  proceedings  are  authorized  by  statute,  by  which  the  estate 
of  one  man  may  be  divested  and  transferred  to  another,  the  owner 
has  a  right  to  insist  upon  a  strict  performance  of  all  the  material 
requirements  of  the  statute,  especially  those  designed  for  his 
security,  and  the  non-observance  of  which  may  operate  to  his 
prejudice.***  It  is  not  the  policy  of  the  law  to  deprive  the  citizen 
of  his  property  by  sales  made  on  account  of  the  government  through 
its  ofificers,  who  have  no  interest  in  the  matter,  without  putting  him 
wholly  in  fault  in  not  complying  with  his  obligations.** 

A  synopsis  of  the  special  proceedings  culminating  in  the  sale 
is  of  the  highest  importance  whenever  the  sale  is  relied  upon  as 
the  foundation  of  title,  but  in  ordinary  examinations  tax  sales  are 
shown  rather  in  the  nature  of  incumbrances  on  the  title  or  charges 
upon  the  land,  and  it  is  customary  to  show  only  the  fact,  leaving 
the  question  of  validity  to  be  decided  by  other  and  special  searches. 
For  this  purpose  tax  sales,  when  still  subject  to  redemption  or  not 
consummated  by  deed,  are  shown  after  the  chain  and  under  a  classi- 
fied head,  the  abstract  consisting  only  of  a  brief  mention  of  the 
date  of  sale  and  tax  for  which  the  sale  is  made,  with  reference 
to  the  official  record ;  a  brief  description  of  the  premises  sold ;  and 
the  name  of  the  person  to  whom  the  certificate  issued.  Forfeitures 
to  the  State  are  treated  the  same  as  tax  sales.  The  following  will 
indicate  the  method: 

Tax  Sales. 


Sale  commencing  Sept.  13,  1880,  for  special  assessments  of  the  City 
of  Chicago. 

Record  37,  page  :'>8. 

Lot  'i,  ill  East  half  of  Block  2i,  Canal  Trustees'  Subdivis-ion 
of  West  half,  and  West  half  of  North  East  quarter  of  Section 

S3  Eeinhart    v.    Schuyler,    2    Gilm.  Biggins,  96  111.  481 ;   Abbott  v.  Dol 

(111.)    473;    Dunlap   v.    Gallatin    Co.,  ing,  49  Mo.  302. 

15  111.  7.  35  Marsh   v.   Chestnut,   14   111.   223; 

34  Charles  v.   Waugh,   35   111.   315;  Holbrook  v.  Dickinson,  46  111.  285. 

Cahoon  v.  Coe,  57  N.  H.  556;  Clarke  86  Rivers  v.  Thomp.son,  43  Ala.  633. 

V.    Rowan,    53    Ala.    401 ;    People    v.  The  lien  of  taxes  is  purely  legal   in 


§  530]  TAXES  AND   TAX  TITLES.  559 

17,  Town  39  North,  Range  14,  East.    Sold  Oct.  15,  1880,  (War- 
rant No.  4,382,  for  macadamizing,  etc.,  W.  Jackson  Street) 
to  Asahel  Gage  for  $8.40. 
Sale  Commencing  Aug.  2,  1875,  for  State  and  County  taxes  of 
1874. 

Record  22,  page  201. 

Lots  13  and  14  in  Block  10,  of  Rockwell's  Addition  to  Brock- 
ton. Sold  Sept.  25,  18/5,  for  State  and  County  taxes,  1874,  to 
Asahel  Gage,  for  $51.95. 

Where  there  are  forfeitures  as  well  as  sales  these  are  shown  in 
much  the  same  manner. 

§  530.  Forfeitures.  The  class  of  forfeitures  to  wliich  this  sec- 
tion alludes,  is  based  upon  the  principle,  "that  every  owner  of  lands 
hold  his  estate  upon  the  implied  condition  that  he  will  furnish  a 
list  of  his  taxable  estate,  and  promptly  pay  his  share  of  the  com- 
mon burdens  assessed  against  the  entire  community ;  and  if  he  omits 
to  comply  with  the  condition,  and  his  estate  is  offered  at  public 
vendue,  and  no  purchaser  can  be  found  for  it,  the  title  is  trans- 
ferred from  the  owner  to  the  State,  the  latter  being  alwaj's  readj^ 
to  bid  for  the  land,  when  no  other  bidder  appears."^''  The  term 
"forfeit"  is  not  always  used,  but  the  effect  in  every  State,  where 
the  property  passes  to  the  State  in  default  of  purchasers,  is  a  for- 
feiture. A  forfeiture  operates  to  divest  the  title  of  the  original 
owner,  though  ample  time  is  always  allowed  for  redemption,  and 
purchasers  of  forfeited  lands,  where  the  law  has  been  strictly  com- 
plied with,  wdll  acquire  a  valid  title  from  the  State. 

A  note  of  forfeiture  is  sufficiently  expressed  as  follows: 

Forfeiture. 


Sale  commencing  Sept.  13,  1880,  for  State  and  County  taxes  of 
1879. 

Record  23,  page  205. 

Lot  5,  of  Block  10,  in  Williams'  Snhdivision  of  the  North 
East  quarter  of  Section  16,  Town  23  North,  Range  14  East  of 

its    character,    the    creature    of    the  and    in    no   other  manner:    People  v. 

statute,    not    arising    upon    contract,  Biggins,   06    III.   481. 

and    can    be    enforced    in    the    mode  87Blackw.     Tax     Tit.     •460;     See 

provided  bj  the  law  of  its  creation,  Clery  v.  Hinman,  11  111.  430. 


560  ABSTKACTS   OF    TITLE.  [§  530 

the  :!d  /'.  .1/..  tras  forftilcd  lo  the  iStdlr  of  llliiiuis,  Oct.  IT), 
IS/^(f,  for  the  non-pay >nc)tt  of  State  and  Couutji  tares  of  ]S79. 
Atnoxnt,  $55.00. 

If  desired  the  name  of  the  person  eharped  with  the  assessment  on 
the  eolleetor's  books  may  be  also  shown.  This  does  not  seem  to  be 
material,  but  many  examiners  prefer  to  show  the  assessment.  When 
siu'h  is  tlie  ease  add  to  the  foregoin<i-  tlie  followiiiji: : 

Said  Lot  assessed  in  the  naive  of  Thomas  Hruu-n. 

§531.  Tax  Sales — Tax  Payer  as  Purchaser.  A  very  erroneous 
opinion  has  gained  currency  in  many  localities  that  a  purcha.se  by 
one  owning,  or  interested  in,  the  land  sold  for  taxes  strengthens  a 
title  previously  acquired,  and  hence  it  is  not  uncommon  to  find  tax 
deeds  to  persons  already  possessing  legal  interests  in  the  property. 
Such  ileeds,  however,  are  mere  nullities,  for  it  is  a  proposition  be- 
yond dispute  that  one  whose  duty  it  is  to  pay  a  tax  can  not  be  a 
purchaser  of  property  offered  for  .sale  for  the  purpose  of  collect- 
ing it.^^  The  payment  of  the  money,  in  such  case,  will  be  regarded 
only  as  a  payment  of  the  tax,  and  not  as  a  purchase  of  the  prop- 
erty :  3^  and  the  deed,  at  best,  would  evidence  nothing  more  than 
that  tlic  tax  on  which  it  was  founded  was  satisfied,  the  lien  of  the 
State  discharged,  and  the  estate  restored  from  the  sale,  but  no 
new  title  would  be  created  or  transferred  by  it.*" 

Nor  does  this  principle  apply  only  where  there  is  a  direct  legal 
obligation.  The  party  against  whom  a  tax  is  assessed  is  directly 
liable  for  the  tax,  as  is  also  a  purchaser,*^  or  lessee,*^  who  has  con- 
tracted to  pay  same,  and  in  these  cases,  where  there  is  a  direct 
legal  obligation,  there  can  be  no  (luestion  about  the  duty.  But 
other  parties  may  acquire  an  interest  in  real  estate  who  are  not 

38  Douglas  v.  Dangerfield,  10  Ohio,  W  Gould    v.    Day,    4    Otto    (F.    S.) 

1.")2;   Busch  v.   Huston,  755  111.   343;  40.1.      A    tax    floed,    however,    Ls    al- 

Rarton  v.  Moss,  33  111.   50;   Dunn  v.  ways    color   of   title    and   where    pos- 

Snell,   74  Me.   22;    Christy  v.  Fisher,  session    is    taken    under   it   and    such 

58    Cal.    256;    Williamson   v.    Russell,  possession  is  continued  for  the  .statu- 

18  W.  Va.  612;   Cooley  on  Taxation,  tory  period  of  limitation  a  title  may 

346 ;  Blackw.  on  Tax  Tit.  400.  be  predicated  upon  it. 

39Baily  v.    Doolittle,    24   111.    577;  41  Fitzgerald     v.     Spain,     30     Ark. 

Ballame  v.  Forsythe,  13  How.  (U.  S.)  334. 

18;    Glancy   v.    Elliott,    14    HI.    456;  42  Waggoner     v.     McLoughlin,     33 

Middleton    Bank    v.    Bacharach,    46  Ark.  201. 
Conn.    513:    .Johnston    v.    Smith,    70 
Ala.   108. 


§  532]  TAXES   AND    TAX   TITLES.  561 

directly  responsible  for  the  taxes,  and  who  enter  into  no  contract 
in  respect  to  them,  yet  may  be  so  situated  that  it  is  their  duty  to 
pay  them.  For  instance,  a  purchaser  of  the  property  or  of  the 
equity  of  redemption  subject  to  a  tax  lien  may  be  compelled  to 
pay  the  taxes  in  order  to  protect  his  own  title.  Such  a  party  can 
not  ordinarily  be  a  purchaser  of  a  tax  title.  So,  too,  a  mortgagee 
is  under  no  legal  obligation  to  paj^  the  taxes,  and  yet  he  may  be 
compelled  to  pay  them  in  order  to  protect  his  mortgage.  Although 
there  may  be  cases  which  hold  that  under  certain  circumstances  he 
may  purchase  a  tax  title,  yet  the  general  rule  is  that  he  can  not ;  *^ 
for  the  reason  that  it  is  not  necessary  for  him  to  do  so.  He  may  pay 
the  tax  and  the  amount  paid  will  be  added  to  his  debt,  and  he  will 
hold  the  whole  property  as  security  therefor.  In  such  a  case  it  is 
unnecessary  to  complicate  the  legal  title  with  a  tax  deed,  and  the  law 
will  not  allow  it  to  be  done.  Nor  does  it  vary  the  case  in  principle  if 
the  person  paying  the  tax  owns  less  than  the  whole  equity.  Wheth- 
er his  interest  be  worth  much  or  little,  whether  he  owns  the  whole 
or  a  part,  can  make  no  difference.  In  either  case  if  his  interest  is 
worth  protecting  he  will  pay  the  tax,  and  in  neither  case  can  he 
purchase  a  tax  title.  All  such  persons  are  incapable  of  purchasing 
at  a  tax  sale,  and  deeds  to  them  convey  no  title.** 

§  532.  Rights  of  Purcliasers.  A  purchaser  at  tax  sale  is  not  af- 
fected by  any  matter  pertaining  to  title  not  connected  with  the 
tax  proceedings,  nor  is  he  charged  with  notice  of  any  facts  ex- 
traneous thereto.  A  sale  for  taxes  is  not  subject  to  the  rule  that 
one  who  purchases  during  the  pendency  of  a  suit  is  held  bound 
by  the  decree  that  may  be  made  therein,***  for  the  lis  pendens  only 
relates  to  and  affects  voluntary  alienations  by  the  defendant  pend- 
ing the  action.  It  has  nothing  to  do  with  parties  asserting  rights 
independent  of  and  adverse  to  that  of  the  defendant,  and  where 
one  acquires  title  under  a  sale  for  taxes  he  is  not  bound  by  the 
foreclosure  of  a  mortgage  given  by  a  former  owner  of  the  land, 
and  his  title  \^^ll  prevail  against  that  of  the  purchaser  at  the  fore- 
closure sale.**     It  is  true  that  a  purchaser  at  a  tax  sale  comes 

43  Williams  v.  Townsend,  31  N.  Y.  one   who   holds   a   quitclaim    deed    to 

411;    Sturdevant  v.   Mather,   20  Wis.  property     previously     conveyed     may 

576.  purchase   same   at  tax    sale:      Curtis 

44Middleton    Sav.    Bank    v.   Bach-  v.   Smith,  42  Iowa,  665. 

arach,  46  Conn.  513;  Jacks  v.  Dyer,  45  Wright  v.   Walker,   30   Ark.   44. 

31    Ark.    344.      Possession    under    a  46  Becker  v.  Howard,  6  Thomp.  & 

deed   which   conveys   no   interest   will  C.  (N.  Y.)  603;  4  Hun  (N.  Y.),  359. 

not  disqualify  the  grantee  to  purchase  This  is  sometimes  denied.     See  Smith 

the  property  when  sold  for  taxes.     So  v.  Lewis,  2  West  Va.  39. 
"Warvelle  Abstracts — 36 


562  ABSTRACTS  OF  TITLE.  [§  532 

strictly  and  rigidly  within  the  rule  of  caveat  emptor,'"  but  this  has 
reference  only  to  the  methods  by  which  he  acquires  title,  and  not 
to  antecedent  or  extraneous  matters. 

§  633,  Redemption.  The  subject  of  redemption  from  tax  sales 
bears  a  strong  analogy  to  the  satisfaction  and  discharge  of  judg- 
ments, and  raises  many  of  the  same  questions  in  regard  to  the 
method  of  treatment  in  the  abstract.  It  is  not  the  usual  custom 
of  examiners  to  make  special  mention  of  a  redemption,  as  the  cer- 
tificate of  the  abstract  is  presumed  to  be  a  sufficient  statement  of 
the  condition  of  the  title  at  its  date.  But  in  view  of  the  current 
of  authority,  which  ever  inclines  to  limit  the  examiner's  liability 
to  tlie  actual  occurrences  during  the  period  covered  by  his  search, 
irrespective  of  subsisting  but  previously  contracted  liens,  it  would 
seem  a  far  more  satisfactory  practice,  and  one  tending  to  greater 
ccrt;iinly  in  arriving  at  conclusions  or  passing  opinions,  to  show 
the  extinguishment  of  any  and  every  lien  which  former  examina- 
tions may  have  disclosed,  except,  perhaps,  where  this  has  been 
effected  by  the  statute  of  limitations. 

From  two  to  three  years  is  the  period  ordinarily  allowed  in 
which  the  owner  or  interested  party  may  discharge  the  obligation 
imposed  by  the  levy  of  the  tax  and  relieve  the  land  from  its  burden. 
During  this  period  the  purchaser  has  a  contingent  interest,  which, 
after  the  day  for  redemption  has  passed,  may  ripen  into  an  abso- 
lute title.  This  contingency  may  be  defeated  by  payment,  and 
when  such  is  the  case,  it  will  often  become  as  proper  a  matter  for 
special  mention  as  a  release  or  discharge  of  a  mortgage.  Where 
the  sale  and  redemption  both  occur  during  the  period  included 
and  covered  by  the  dates  of  the  examination  the  whole  transac- 
tion may  wuth  propriety  be  wholly  disregarded,  since  it  only 
amounts  to  a  payment  of  the  tax ;  but  where  a  former  examination 
discloses  a  sale,  and  a  continuation  is  made  during  the  redemption 
period,  the  lien  in  the  meantime  having  been  extinguished,  such 
fact  should  affirmatively  appear,  and  should  the  abstract  be  silent 
in  this  particular,  a  requisition  for  further  information  should  be 
made  by  counsel  before  passing  the  title.  Many  examiners  show 
redemptions  by  a  marginal  note  on  the  original  abstract  of  the 
tax  sale,  and  most  attorneys  prefer  this  method  as  it  effectually 
disposes  of  the  question  the  moment  it  is  raised. 

§  534.  Certificate  of  Sale.  Certificates  of  sale  are  rarely  re- 
corded, though  they  undonbtedly  vest  in  the  purchaser  an  equit- 

47  Hamilton  v.  Valiant,  30  Md.  139. 


§  535]  TAXES   AND    TAX   TITLES.  563 

able  interest  in  the  land  which  entitles  him  to  be  clothed  with  the 
legal  title  at  any  time  after  the  period  of  redemption  has  expired, 
and  before  his  right  has  been  barred  by  the  statute  of  limitation." 
The  right  to  record  such  certificates,  and  assignments  thereof** 
when  such  assignments  are  duly  sealed,  attested  by  witnesses,  and 
acknowledged  in  conformity  to  law,  is  often  given  by  statute,  and 
when  recorded  in  the  proper  county  they  have  the  same  effect  as 
other  records  therein.  When  found  upon  the  records  they  are 
shown,  if  prior  to  deed,  as  a  lien  or  charge  upon  the  land  and  after 
the  course  of  title  has  been  exhibited;  when  followed  by  deed  they 
are  briefly  noted  in  connection  with  that  instrument.  A  synopsis 
of  a  certificate  of  sale  simply  recites  the  facts  stated  therein.  The 
form  will  vary  as  the  certificate  may  be  made  in  pursuance  of  a 
judgment,  as  in  Illinois;  or  by  the  county  treasurer  under  the  law, 
without  judgment,  as  in  Wisconsin.  An  example  of  the  latter 
form  is  given.  The  reader  is  referred  to  illustrations  of  sheriff's 
certificates  in  other  parts  of  the  work. 


Hugh  McDermott,  County 
Treasurer  of  Kenosha  Coun- 
ty, Wis., 

to 
William  Goffe. 


Tax  Certificate. 

Dated,  etc. 

*  « 


Said  Treasurer  certifies  that 
^  he  did,  at  public  auction,  pursu- 
ant to  notice  given  as  hy  law  required,  on  May  1,  1883,  sell  to  Wil- 
liam Goffe,  {or  the  county  of  Kenosha,)  the  following  described  real 
estate  [describing  same]  for  $5.50,  being  the  amount  due  for  taxes, 
interest  and  charges  on  said  lands  for  the  year  1882,  and  that  sadd 
William  Goffe  (or  assigns)  will  be  entitled  to  a  deed  of  same  in  three 
years  from  date,  sinless  sooner  redeemed  according  to  laiv. 

§  535.  Tax  Deeds.  Neither  the  legal  nor  the  equitable  title  to 
lands  sold  for  non-payment  of  taxes  vests  in  the  purchaser  until 
the  execution  and  delivery  of  a  tax  deed.^°  There  is,  however,  some 
confusion  with  I'espeet  to  the  legal  status  of  a  tax  deed.  Thus,  it  has 
frequently  been  held  that  the  deed  does  not  operate  ipso  facto  to 

« Blackw.   on   Tax   Titles,  *  372.  50  Stephens     v.     Holmes,     2G     Ark. 

49  The  assignee  of  a  tax  certificate       48;   Ins.  Co.  v.   Scales,  27  Wis.  640; 
holds  it  subject  to  all  the  infirmities       Bracket    v.    Gilmore,    If)    Minn.    245; 
l)y  which  it  would  have  been  affected       Lake  v.  Gray,  35  Iowa,  44. 
in   the   hands  of   the   tax   purchaser: 
Light  V.  West,  42  Iowa,  138;  Besore 
V.  Dosh,  43  Iowa,  211. 


564  ABSTRACTS    OF    TITLE.  [§  535 

transfer  tlio  title  of  the  owner  as  in  ordinary  deeds  between  individ- 
uals, bnt  it  is  the  last  act  of  a  series  of  proceedings  upon  the  regu- 
larity of  which  it  depends  for  its  character  and  effect.  It  is  not  title 
in  itself,  nor,  unless  aided  by  statute,  even  evidence  of  it.  Its  re- 
citals bind  no  one,  and  it  creates  no  estoppel  upon  the  former  own- 
er.*^ The  mere  production  of  the  deed,  in  the  absence  of  statutory 
aid,  creates  no  presumption  in  its  favor  until  all  the  anterior  pro, 
ceedings  prescribed  by  law  have  been  affirmatively  shown  to  have 
been  complied  with,  when  it  becomes  conclusive  evidence  of  title 
according  to  its  extent  and  purport.  The  foregoing  doctrine,  which 
long  obtained  in  this  country,  is  based  upon  the  policy  that  it  is 
better  that  the  purchaser  should  lose  the  small  amount  of  his  bid 
rather  than  the  owner  should  forfeit  a  valuable  estate,  where  the 
proceedings  show  irregularity  or  illegality,^^  and  the  burden  of 
proving  title  under  tax  deeds  has  been  thrown  upon  him  who 
asserts  such  title." 

§  536.  Continued — Statutory  Modiflcationa.  Though  the  rule  of 
the  common  law,  that  he  who  affirms  the  existence  of  a  material 
fact  must  prove  it,  was  for  many  years  applied  to  vsales  for  taxes  in 
all  its  unbending  rigidity,  until  the  astuteness  of  judicial  refine- 
ment had  rendered  almost  inoperative  all  legislation  providing  for 
such  .sales,  a  marked  change  is  now  apparent  in  many  States.  Strin- 
gent legislation  has  endeavored  to  counteract  the  tendency  of  judi- 
cial refinement,  by  declaring  the  operation  and  effect  of  tax  deeds, 
and  such  conveyances  in  a  majority  of  the  States,  when  formal  and 
duly  executed,  are  now  taken  as  prima  facie  or  presumptive  evi- 
dence of  the  regularity  of  all  proceedings,  from  the  listing  or  valu- 
ation of  the  land  up  to  the  issuance  of  the  deeds.  A  few  States 
have  gone  so  far  as  to  declare  such  deeds  conclusive  evidence  of 
every  matter  or  fact  required  by  law  to  make  a  valid  sale  and  vest 
title  in  the  purchaser,  except  the  facts  of  exemption,  payment,  and 
redemption,  and  as  to  the  non-existence  of  those  facts  it  is  made 
prima  facie  evidence."  This  doctrine,  however,  has  been  expressly 
repudiated  by  the  courts  as  an  unconstitutional  confiscation  of  prop- 
erty, and  the  rule  has  been  announced  that  the  legislature  can  make 
a  tax  deed  conclusive  evidence  of  the  regularity  of  prior  proceedings 
only  as  to  non-e.ssentials  or  matters  of  routine  which  rest  in  mere 

61Blackw.    on    Tax    Titles,    *  364;  53  Lyon    v.    Hunt,    11    Ala.    295; 

Jackson  v.  Esty,  7  Wend.  148.  Keane  v.  Cannonoran,  21  Cal.  291. 

62  Blaekw.     on     Tax     Titles,     *68;  64  See    Gwynne    v.    Neiswanger,    18 

Denning  v.  Smith,  3  Johns.  Ch.  344;  Ohio,    400;    Allen    v.    Armstrong,    16 

Jackson  v.  Morse,  18  Johns.  442.  Iowa,  508. 


§  536]  TAXES    AND    TAX   TITLES.  565 

expedienc}'.^^  But  the  owner  of  property  can  not  be  precluded 
from  showing  the  invalidity  of  a  tax  deed  thereto  by  proving  the 
omission  of  any  act  essential  to  the  due  assessment  of  the  same, 
the  levy  of  a  tax  thereon,  and  the  sale  thereof  on  that  account.  As 
to  the  performance  of  these  acts,  and  the  facts  necessary  to  consti- 
tute them,  the  deed  can  only  be  made  prima  facie  evidence.^^ 

It  would  seem  to  be  well  settled,  however,  that  the  legislature  has 
the  power  to  make  a  tax  deed  pHma  facie  evidence  of  material 
facts  upon  which  the  right  to  sell  and  convey  depends,  and  when 
this  has  been  done  it  has  the  effect  to  entirely  change  the  burden  of 
proof,  relieving  the  purchaser  therefrom  and  imposing  it  upon  the 
person  who  attempts  to  controvert  the  deed ;  ^'  but  to  have  this  ef- 
fect the  deed  must  be  regular  on  its  face  ^*  and  display  an  apparent 
conformity  to  law.  Whenever  it  is  shown  that  any  essential  particu- 
lar in  the  anterior  proceedings  has  been  irregular,  the  authorities 
are  quite  harmonious  in  declaring  its  prima  facie  character  to  be 
lost,^^  and  when  the  prima  facie  character,  as  established  by  statute, 
is  overthrown,  the  common  law  principles  stated  in  the  preceding 
section,  at  once  attach,  and  the  person  asserting  the  title  must  prove 
by  satisfactory  evidence  the  regularity  of  the  proceedings.^®  The 
law  declaring  a  tax  deed  prima  facie  evidence  of  title,  does  not  dis- 
pense with  the  statutory  requirements  which  precede  the  sale,  but 
only  shifts  the  burden  of  proof  from  the  party  claiming  under  the 
deed  to  the  party  impeaching  it.^^ 

A  valid  tax  deed  carries  with  it  a  prima  facie  right  of  possession. 
Where  the  land  is  vacant  or  unoccupied  the  constructive  possession 
is  deemed  to  be  in  the  holder  of  the  tax  title.^^  3^^  ^  tax  deed  has 
no  more  force  or  effect  for  procuring  possession  than  any  other 

56  Acts  which  need  not  have  been  Hart  v.   Smith,  44  Wis.   213;   Lacey 

required    in    the    first    place — as    the  v.   Davis,   4   Mich.    140;    Washington 

affidavit  of  the   sheriff  to  the  delin-  v.    Hasp,    43    Kan.    324;    Taylor    v. 

quent  list — and  which  the  legislature  Wright,  121  111.  455. 

may   by   a   curative   act  excuse  when  58  Taylor   v.    E.    R.    Co.,    45    Minn, 

omitted:      Marx     v.     Hawthorn,     12  67;   Merriam  v.  Dovey,  25  Neb.  618. 

Saw.   (C.  Ct.)   374.  69  Sibley   v.    Smith,    2    Mich.    486; 

66  Allen    v.    Armstrong,    16    Iowa,  Graves  v.  Bruen,  11  111.  431;  Tumey 

508;  MaeCready  v.  Sexton,  29  Iowa,  v.  Yeoman,  16  Ohio,  24;  Rayburn  v. 

356;    Ealey  v.    Guinn,    76    Mo.    263;  Kuhl,    10    Iowa,    92;    Thompson    v. 

Callanan   v.    Hurley,    93    U.    S.    387 ;  Ware,  43  Iowa,  455. 

Steeple  v.  Dowing,  65  Ind.  501.  60  Hurd  v.  Brisn^r,  3  Wash.  1 

57Biscoe  V.   Coulter,   18   Ark.  423 


O 'Grady  v.  Bamishel,  23  Cal.  287 
Watson  V.  Atwood,  25  Conn.  313 
Millikan  v.  Patterson,  91  Ind.  515 
Clark     V.     Conner,     28     Iowa,     311 


61  Williams   v.    Kirtland,    13    Wall. 
30G. 

62  Moingona   Coal  Co.   v.   Blair,   51 
Iowa,  447,  1  N.  W.  768. 


56G  ABSTRACTS    OF    TITLE.  [§  53(j 

iorm  of  conveyanee  and  the  holder  thereof,  who  finds  the  land  occu- 
pied, must,  if  the  occupant  refuses  to  surrender  possession,  resort 
to  the  same  legal  remedies  to  accjuirc  same  as  the  holder  of  any 
other  deed  would  employ.®' 

The  rules  which  govern  the  construction  of  ordinary  conveyances 
apply  with  practically  equal  force  to  tax  deeds.  Thus,  a  tax  deed 
to  a  deceased  person,  not  withstanding  the  words  "his  heirs  and 
assigns, ' '  follow  the  name  of  such  deceased  grantee,  will  not  operate 
to  vest  title  in  the  heirs.    Such  a  deed  is  void  as  a  conveyance.^ 

§  537.  Formal  Parts.  The  form  and  substance  of  tax  deeds 
are  usually  prescribed  by  statute,  in  which  case  a  strict  conformity 
is  required  or  the  deed  will  be  void,*'  though  if  defective  a  new  deed 
will  usually  issue  to  the  person  entitled,®*  and  the  deed  will  not  be 
avoided  for  slight  irregularities  or  variances  from  the  statutory 
form.®''  The  ordinary  incidents  of  deeds  attach  to  conveyances  of 
land  sold  for  taxes  and  in  most  respects  they  stand  upon  the  same 
footing  as  deeds  between  individuals.®*  To  attempt  an  enumeration 
of  the  special  distinctive  features,  however,  would  be  to  refer  to  the 
statutes  of  every  State  in  the  Union,  and  not  alone  to  one  but  to 
many,  as  few  subjects  have  been  so  harassed  by  legislative  tinkering, 
both  as  to  the  methods  of  procedure  and  its  evidence,  as  the  sale  of 
land  for  taxes.  But  inasmuch  as  the  deed  does  not  derive  its  valid- 
ity from  its  capacity  as  an  independent  conveyanee  to  transfer  the 
estate  described  in  it,  but  from  the  existence  of  a  power  and  compli- 
ance with  prescribed  conditions,  it  should  show  upon  its  face  a 
proper  exercise  of  the  power  in  pursuance  of  which  it  purports  to 
have  been  executed.®*  This  rule  is  of  uniform  operation  every- 
where.    All  the  recitals  provided  by  law,  which  go  to  show  full 

SSHandlin  v.   Lumber   Co.,   47   La.  68  Blakely    v.    Bestor,    13    111.    708. 

Ann.  401,  16  So.  955;  Steltz  v.  Mor-  The    construction    of   a    tax    deed    in 

gan,   16   Idaho,   368,   101   Pac.    1057,  respect    to    the    description    of    the 

28  L.  K.  A.  (N.  S.)  398.  land    conveyed    must    be    the    same 

64  Baker  v.  Lane,  82  Kan.  715,  109  :in    if   such   dt'sciiption    were   used   in 

Pac.  182,  28  L.  R.  A.  (N.  S.)  405.  a     deed     between     private     individu- 

66  Chandler  v.  Spear,  22  Vt.  388;  als.  The  doctrine  of  strict  con- 
Boardnian  v.  Bourne,  20  Iowa,  134;  struction,  as  applied  to  the  execu- 
Kruger  v.  Knob,  22  Wis.  429.  The  tion  of  naked  statutory  powers,  has 
form  in  sncli  case  becomes  substance,  no  application  in  such  case:  Blakely 
and    must    be    strictly    pursued:     At-  v.  Bestor,  13  111.  708. 

kins  v.  Kinman,  20  Wend.  249.  69  Blackw.  Tax  Tit.  *  368;  Jackson 

66Finley  v.  Brown,  22  Iowa,  538;  v.  Roberts,  11  Wend.  425;  Tolman  v. 

Woodman  v.  Clapp,  21  Wis.  350.  Emerson,  4  Pick.  160. 

67  Bowman  v.  Cockerill,  6  Kan.  311. 


§  537]  TAXES   AND    TAX   TITLES.  567 

compliance,  are  necessary  and  integral  parts,  and  the  failure  to  re- 
cite any  one  of  the  prerequisites  to  a  valid  sale  will  raise  a  presump- 
tion that  the  omitted  requirement  was  not  complied  with.'<> 

The  execution  and  authentication  are  purely  matters  of  local  stat- 
utory regulation.  But  where  the  statute  directs  the  particular  man- 
ner and  form  of  execution  and  acknowledgment  a  strict  conformity 
to  statute  is  necessary  to  ensure  validity.  Hence,  in  the  abstract  of 
a  tax  deed  special  care  should  be  observed  by  the  examiner  and  any 
deviation  from  the  statutory  requirements  should  be  noted.  The 
officer  making  the  deed  acts  under  a  naked  statutory  power  and  un- 
less he  coraplys  with  all  of  the  provisions  of  the  statute  the  deed  is 
void  upon  its  facc'^^^ 

The  later  forms  of  tax  deeds  prescribed  by  statute  are  very  sliort 
and  concise,  and  the  recitals  confined  to  a  few  material  points,  while 
their  legal  effect  and  operation  is  expressly  defined  as  in  case  of 
deeds  between  individuals  after  statutory  forms.  The  execution  of 
the  deed  is  confided  to  the  county  clerk,  or  other  officer  having  the 
custody  of  the  tax  records.  A  statutory  deed  as  prescribed  in  Illi- 
nois and  many  of  the  Western  States  may  be  shown  in  the  abstract, 
as  follows : 

E.  F.  C.  Klokke,  "  County  ]         Tax  Deed. 
Clerk  of  Cook  Co.,  III.,      |         Dated,  etc. 

4-Q  I  *  #  *  * 

Hiram  Johnson.  |         *  *  *  * 

Doc.  203,073.  J         *  *  *  * 

Recites,  that  at  a  public  sale  of 
real  estate  for  non-payment  of  taxes,  made  in  the  county  aforesaid, 
on  Oct.  12,  1876,  the  following  described  real  estate  was  sold,  to- 

70  Long   V.   Burnett,    13    Iowa,   29 ;  The  deed  must  show  affirmatively  that 

Lain  v.  Cook,  15  Wis.  446;  Large  v.  the  law  has  been  cdmplied  with  in  all 

Fisher,   49    Mo.    307,      A   ministerial  particulars:      Spurlock   v.    Allen,    49 

officer,  in  making  a  return  or  recital  Mo.   178;    Abbott  v.  Doling,  49  Mo. 

as  to  how  he  executed  a  power,  must  302;   Annan  v.  Baker,  49  N.  H.  161. 

set  out  the  facts  and  the  manner  in  71  Reid  v.  Merriani,  15  Neb.  323,  18 

which  he  performed  the  acts,  and  let  N.  W.  137;  Gabe  v.  Root,  93  Ind.  256; 

the  court  determine  whether  they  com-  Mathews  v.  Blake,  16  Wyo.   116,  92 

ply  with  or  are  in  accordance  with  the  Pac.  242.     In  the  latter  case  the  deed 

law.     The  sale  of  property  for  taxes  was   not   acknowledged    and    lliis   was 

is  an  ex  parte  proceeding.    The  officer  hold  to  be  a  fatal  defect, 

acta  at  his  own  peril,  and  must  per-  72  Where  the  county  is  the  grantor, 

form    every   prerequisite    required    by  it  must  be  named  as  such,  while  the 

statute  before  the  title  of  a  citizen  to  procurement  of  the  county  clerk  may 

his  property  can  be  taken  from  him.  he  shown  in  the  execution. 


568  ABSTRACTS   OF    TITLE.  [§  537 

wit:  Idesoribing  same]  atid  sawc  not  having  been  redeemed  fram 
said  sale,  and  it  appearing  that  the  holder  of  the  certificate  of  pur- 
chase has  complied  with  the  law  necessary  to  entitle  him  to  a  deed 
of  said  real  estate: 

Therefore,  said  county  clerk,  in  consideration  of  the  premises  and 
by  virtue  of  the  statute,  grants  and  conveys  to  said  second  party  the 
real  estate  hereinbefore  described,  subject  to  any  redemption  pro- 
vided by  law. 

Signed  by  said  clerk,  and  the  seal  of  the  County  Court  affixed. 

Acknouledgmcnt. 

Inasmuch  as  the  deed  is  statutory  and  can  only  be  in  one  form,  a 
shorter  method  is  sometimes  adopted,  which,  after  the  caption  and 
formal  parts  relating:  to  dates  and  record,  would  read  somewhat 
in  this  manner: 

Conveys  (icith  other  property)  Lot  56,  in  Block  2,  in  Canal 
Trustees'  Subdivision  of  the  south  east  quarter  of  Section  87,  T.  39, 
X.  R.  14  E.  of  3d.  P.  M.,  Cook  Co.,  Ills.,  reciting  sale  of  same  Oct. 
12,  1895,  for  non-payment  of  taxes. 

Where  the  deed  is  of  long  standing,  and  particularly  where  the 
tax  title  has  merged  into  the  original  title,  this  method  is  preferable. 

§  538.  Effect  of  Deed  as  Evidence.  The  form  last  considered, 
and  wliich  will  not  vary  materially  from  that  now  in  general  use 
where  a  statutory  form  is  prescribed,  is  very  meager  in  recitals. 
Its  effect  as  evidence  is  dependent  on  the  statute,  which  has  made 
it  prima  facie  evidence,  in  all  controversies  and  suits  in  relation  to 
the  right  of  the  purchaser,  or  those  claiming  under  him,  to  the 
property  thereby  conveyed,  of  the  following  facts:  That  the  prop- 
erty conveyed  was  subject  to  taxation  at  the  time  the  same  was 
assessed,  and  had  been  listed  and  as.sessed  in  the  time  and  manner 
required  by  law ;  tliat  the  taxes  or  assessments  were  not  paid  at 
any  time  before  the  sale;  that  the  property  had  not  been  redeemed 
from  the  sale  at  the  date  of  the  deed;  that  it  was  advertised  for 
sale  in  the  manner  and  for  the  length  of  time  required  by  law ;  that 
it  was  sold  for  taxes  or  special  assessments,  as  stated  in  the  deed; 
that  the  grantee  in  the  deed  was  the  purchaser  or  assignee  of  the 
purchaser;  that  the  sale  was  conducted  in  the  manner  required  by 
law.'» 

73  R.  S.  111.  1874,  Chap.  120;  R. 
S.  Wis.  1878,  Chap.  50,  and  see  R. 
S.  Ind.  1876,  chap.  123. 


§  538]  TAXES   AND    TAX   TITLES.  569 

In  addition,  any  judgment  '*  for  the  sale  of  real  estate  for  delin- 
quent taxes  estops  all  parties  from  raising  any  objections  thereto 
or  to  a  tax  title  based  thereon,  which  existed  at  or  before  the  rendi- 
tion of  such  judgment,  and  could  have  been  presented  as  a  defense 
to  the  application  for  such  judgment  in  the  court  wherein  the 
same  was  rendered,  and  as  to  all  such  questions  the  judgment  itself 
is  declared  to  be  conclusive  evidence  of  its  regularity  and  validity 
in  all  collateral  proceedings,  except  in  cases  where  the  tax  or  assess- 
ment has  been  paid,  or  the  property  was  not  liable  to  the  tax  or 
assessment. 

The  effect  of  statutes  similar  to  the  foregoing  and  of  such  statutes 
as  have  been  enacted  to  quiet  tax  titles  and  secure  the  property  con- 
veyed by  tax  deeds,  has  been  to  give  stability  to  such  deeds  and  re- 
move the  chances  of  reinvesture  in  the  original  owner.  Yet  even 
in  the  face  of  such  statutes  the  courts  still  cling  to  the  former  doc- 
trines in  this  respect  and  critically  inspect  tax  deeds  when  offered 
in  support  of  title,'*  and  where  a  deed  is  void  upon  its  face,  as 
when  there  is  a  want  of  power  on  the  part  of  the  officer,  or  where 
there  is  included  in  the  amount  of  the  sale  that  for  which  the  land 
could  not  be  sold,  and  which  is  entirely  unauthorized,  it  has  been 
held  not  to  divest  the  owner  of  his  title  to  the  land,  even  though  the 
special  limitation  of  the  statute  has  run  in  favor  of  such  deed."^^  In 
respect  to  the  description  of  the  land  convej'ed,  a  tax  deed  is  gov- 
erned by  the  same  rules  of  construction  as  other  deeds.'' 

In  this  connection  the  attention  of  counsel  is  directed  to  a  practice 
often  observable  where  spirited  biddings  attend  tax  sales.  In  some 
States  it  is  provided  that  the  officer  conducting  the  sale  shall  sell 
so  much  of  the  land  as  a  purchaser  is  willing  to  bid  the  amount 
of  the  tax  upon.  This  has  resulted  in  sales  of  infinitesimal  portions 
and  it  is  not  uncommon  to  meet  with  tax  deeds  of  the  east  vigin- 
tillionth  of  a  tract.  These  deeds  are  practically  nullities,  and  do 
not  even  cast  a  cloud  upon  the  title.  The  portion  of  the  lot  which 
such  a  deed  purports  to  convey  can  neither  be  found  nor  identified 
and  is  not  susceptible  of  a  possession  of  any  kind.     Hence,  as  the 

74  No   application  for  judgment  is  23    Ind.    32;    and    see    Beekman    v. 

required    in    many    States,    but    the  Bigham,    1    Seld.    (N.   Y.)    366;    Mc- 

county  treasurer,  or  some  other  desig-  Cready    v.    Sexton,     39     Iowa,    356 ; 

nated   officer,   is  given  power   to   sell  Cooley  on  Taxation,  356;  Blackw.  on 

lands  returned  as  delinquent  after  no-  Tax  Tit.  79. 

tice   has  been   given.  76  Annan  v.  Baker,  49  N.  H.   161; 

76  A  statute  which  makes  a  tax  deed  Knox  v.  Cleveland,  13  Wis.  245.     But 

conclusive   evidence,   is  in   derogation  see  Dalton  v.  Lucas,  63  111.  337. 

of    the    common    law    and    must    be  77  Blakely  v.  Bcstor,  13  111.  7()«. 
strictly  construed :     Gavin  v.  Shuman, 


570  ABSTRACTS   OP    TITLE.  [§  538 

land  described  has  no  practical  existence  the  deed  which  purports 
to  convey  it  really  conveys  nothing.  Such  a  deed  has  been  held  void 
on  its  face.'* 

lu  a  majority  of  the  States  application  for  a  tax  deed  must  be 
made  within  a  stated  time,  usually  one  year  after  the  expiration  of 
the  redemption  period.  In  the  event  that  the  deed  shall  not  be 
taken  out  and  recorded  within  the  time  allowed  therefor  both  the 
certificate  and  the  sale  upon  which  it  is  based  becomes  void.''*  It 
would  seem,  therefore,  that  where  a  deed  is  found  upon  record 
after  the  time  so  allowed,  it  may  safely  be  disregarded  in  making 
an  opinion  of  title,  the  invalidity  being  apparent  on  its  face.  But 
if  the  holder  of  the  certificate  has  been  prevented  from  obtaining  a 
deed  within  the  prescribed  period,  either  by  injunction  or  refusal 
of  the  proper  officers  to  issue  same,  and  these  facts  are  recited  in  a 
deed  afterward  issued,  then  the  time  during  which  he  has  been  so 
prevented  ma.v  be  excluded  from  the  computation. '° 

§  539.  Tax  Deed — Possession — Limitation.  Radical  defects  in 
tax  sales  and  resulting  conveyances  may  be  remedied  in  many  of 
the  States,  by  compliance  with  curative  statutes  which  provide,  that 
where  purchasers  unite  possession  and  payment  of  taxes  for  a  defi- 
nite period  to  the  tax  deed  an  unimpeachable  title  inures  to  such 
purchaser;  and  this,  even  though  on  its  face  the  deed  shows  that 
the  sale  was  irregular,  if  there  is  nothing  to  charge  the  purchaser 
with  actual  bad  faith,®^  Good  faith  is  always  presumed  until  the 
contrary  is  made  to  appear,  and  is  imported  by  the  deed  itself.'* 
Where  the  holder  of  the  tax  title  has  become  entitled  to  the  protec- 
tion of  the  statute,  all  questions  as  to  the  regularity  of  the  tax  pro- 
ceedings are  set  at  rest,  except,  perhaps,  those  which  concern  the 
power  and  jurisdiction  of  the  taxing  officers  or  the  liability  of  the 
land  to  taxation.  The  tax  deed  then  becomes  conclusive  evidence 
that  the  taxes  were  properly  levied,  and  that  all  the  requirements  of 
law  were  complied  with,'^  But  where  a  deed  discloses  on  its  face 
that  it  is  illegal,  and  has  been  executed  in  violation  of  law,  a  statute 
of  limitation  can  not  be  brought  in  to  aid  its  validity.'*    The  con- 

78  Petty  v.  Beers,  224  111.  129.  82  Dickenson  v.  Breeden,  30  III.  279. 

79  Gage  v.  Keid,  118  111.  35;  Fuller  83  Knox  v.  Cleveland,  13  Wis.  245. 
V.  Shedd,  161  111.  496.  84  Shoat    v.    Walker,    6    Kan.    65. 

80  These  matters  are  statutory.  In  this  case  the  law  under  which  the 
f'ojisult    local    statutes.  deed   was    issued    had   been    repealed 

81  Dalton  v.  Lucas,  63  111.  337.  prior  to  such  issue:  ('onii)ar('  Dalton 
rompare   Bowman   v.   Wettig,   39   111.  v.   Lucas,   63    111.   337. 

416;    and    see   Geekie   v.   Kirby   Car- 
penter Co.,  9  Reporter,  37. 


§  541 J  TAXES   AND    TAX   TITLES.  571 

stitutiouality  o£  special  statutes  providing  for  a  shorter  period 
than  that  provided  in  the  general  statute  of  limitations  has  been  the 
subject  of  much  debate,  and  is  not  yet  a  settled  question ;  but  there 
can  be  no  doubt  that  a  defective  deed,  though  invalid  as  a  convey- 
ance, will  yet  be  admissible  as  color  of  title,  and  when  followed  by 
actual  adverse  possession  will  set  the  statute  in  operation.^*^ 

The  validity  of  a  tax  deed,  in  some  States,  may  be  impeached 
by  a  failure  of  the  claimant  to  secure  and  hold  possession  of  the 
land  under  the  tax  deed.  In  these  States  actual  or  constructive 
possession  of  the  land  for  a  definite  period  is  necessary  to  perfect 
title.'®  An  interruption  of  the  mere  constructive  possession  cre- 
ated by  recording  the  tax  deed,  by  the  actual  and  exclusive  posses- 
sion of  the  owner  of  the  record  title,  if  continued  for  the  statutory 
period,  without  action  on  the  part  of  the  tax  title  claimant,  extin- 
guishes the  tax  title  and  all  rights  under  the  tax  deed.*'' 

§  540.  Tax  Abstracts.  Whenever  a  tax  deed  is  relied  on  as  a 
foundation  of  title  which  is  independent  of  and  adverse  to  all  other 
titles,  particularly  that  of  the  person  who  was  last  seized  of  the 
fee,  a  full  exposition  of  the  method  by  which  the  right  was  acquired 
is  an  essential  preliminary  to  demonstrate  the  validity  of  all  suc- 
ceeding conveyances.  The  tax  deed,  unaided  by  statute,  is  not  suffi- 
cient to  establish  title,  though  it  may  be  prima  facie  evidence  of 
such,  but  the  prior  steps  should  be  shown  and  all  the  requisites 
necessary  to  a  complete  and  perfect  title  under  the  statute  must  be 
fully  and  succinctly  stated.'*  An  abstract  of  a  tax  title  may  con- 
sist of  a  synopsis  of  the  proceedings  from  the  listing  or  assessment 
to  the  sale  and  issuance  of  deed,  with  all  the  material  matters  copied 
in  full ;  or  if  so  directed,  a  narrative  statement  of  what  was  done, 
the  times,  manner,  place,  etc. ;  but  all  sufficiently  explicit  to  enable 
counsel  to  see  that  every  material  step  has  been  taken,  and  that  in 
a  proper  and  legal  manner. 

§  541.  Special  Assessments.  In  addition  to  the  ordinary  charges 
annually  imposed  b}-  the  State,  and  which  are  usually  designated  as 
taxes,  the  examiner  must  also  search  for  what  are  generally  termed 

86  Dillingham    v.    Brown,    38    Ala.  Comstock,   140   Wis.   427,   122   N.   W. 

313;  Chapman  v.  Templeton,  53  Mo.  285,  28  L.  E.  A.   (N.  S.)  201. 

463;    Washburn   v.   Cutler,    17   Minn.  88  Mr.    Blackwell    in    his    work    on 

361 ;  Wing  v.  Hall,  44  Vt.  118.  Tax   Titles  gives  some  very  valuable 

86  In  Wisconsin  the  statute  fixes  the  forms  for  an  abstract  of  this  char- 
period  at  three  years.  acter.     Sec  Blackw.  on  Tax  Tit.  Ap- 

87  Cornell    University   v.    Mead,   80  pendix. 
Wis.  387,  49  N.  W.  815;   Kathan  v. 


572  ABSTRACTS   OK   TITLE.  f§<!^^ 

"assessments."  An  assessment,  as  distinguished  from  other  forms 
of  taxation,  means  a  special  or  local  imposition  upon  property  in  tlie 
immediate  vicinity  of  municipal  improvements  which  is  necessary 
to  pay  for  such  improvements,  and  is  laid  with  reference  to  the  spe- 
cial benefit  which  the  property  is  supposed  to  have  derived  there- 
from.'® A  properly  prepared  abstract  should  show  all  confirmed 
special  assessments  against  the  property  under  investigation  which 
remain  unpaid  at  the  date  of  the  certificate.  The  statement  may  be 
brief  but  should  comprise  such  data  as  will  fully  acquaint  counsel 
with  all  necessary  particulars  and  readily  enable  any  person  inter- 
ested to  refer  to  the  original  sources  of  information.  Assessments 
are  shown  as  appendices  in  connection  with  statements  of  unpaid 
taxes  and  tax  sales.     The  following  will  be  a  sufficient  mention : 

Special  Assessments. 


Assessment,  Doc.  24.276,  warrant  2i,712,  for  a  plank  sidcAvalk  on 
Ridge  Avenue,  confirmed  Feb.  15,  1900,  was  laid  on  Lot  17, 
Block  5,  aforesaid. 

Amount  of  assessment,  $15.00. 

Sometimes  the  entire  sum  of  an  assessment  is  divided  into  frac- 
tional parts  and  the  payment  extended  over  a  series  of  years.  When 
such  is  the  case  the  fact  should  be  noticed  and  the  installments  paid 
and  unpaid  should  find  appropriate  mention. 

89  Hale   V.    Kenosha,   29   Wis.    599.  provomciils,    but    it    soonis   to    he    too 

In  many  respects  the  system  is  vicious  firmly  established  to  be  questioned  at 

and  unjust,  being  an  attempt  to  com-  this  time, 
pel  individuals  to  pay  for  public  im- 


CHAPTER  XXX. 


DESCENTS. 


§  542.  Title  by  decent. 

§  543.  Nature,  operation  and  inci- 
dents  of  the  title. 

§  544.  Inheritance  as  dependent  on 
seizin. 

§  545.  Heirship,  its  rights  and  privi- 


§546. 
§547. 
§548. 
§  549. 
§550. 

§551. 
§552. 
§553. 
§554. 
§555. 
§556. 


The  line  of  succession. 

General   rule   of   descents. 

The  right  of  representation. 

Preferences. 

Who    may    take    by    descent — 

aliens. 
Continued — Adoptive  heirs. 
Ancestral  estates — Half  blood. 
Surviving   consorts. 
Coparceners. 
What  descends. 
How     affected      by      ancestral 

covenants. 


§  557. 

§558. 
§559. 
§560. 
§561. 
§562. 
§563. 

§564. 
§565. 
§566. 
§567. 
§568. 
§569. 

§570. 

§  571. 


Liability  for  ancestral  cov- 
enants. 

Creditor's  liens. 

Equitable   conversion. 

Proof  of  heirship. 

Proof  of  adoption. 

Proof  of  a  death. 

Continued — Official  registra- 
tion. 

Continued — Probate    of    death. 

Proof  of  birth  and  legitimacy. 

Presumption    of    legitimacy. 

Validity   of   descents. 

Abstract  of  descents. 

Continued — Probate  proceed- 
ings. 

Settlement  without  administra- 
tion. 

Escheat. 


§  542.  Title  by  Descent.  The  best  known  but  least  understood 
title  to  land  is  that  which  the  law  raises  for  the  heir  upon  the  death 
of  the  ancestor.^  It  is  called  title  by  descent,  and  though  for  prac- 
tical purposes  it  is  regarded  as  a  new  title  springing  from  the  death 
of  the  ancestor,  and  when  asserted  must  be  so  proved,  yet  in  reality 
it  is  but  a  continuation  of  the  ancestor's  title,  which  the  law  casts 
upon  the  heir  at  the  moment  of  the  ancestor's  death.^  The  heir  is 
regarded  in  law  as  a  legal  appointee  to  receive  the  title,^  and  this 
appointment  he  can  neither  disclaim  nor  avoid.*  Whenever  the 
death  of  an}'  person  is  shown,  until  rebutted,  the  presumption  is 
that  he  died  intestate,^  and  that  his  heirs  take  his  estate  under  the 


1  The  term  "ancestor,"  when  used 
with  reference  to  the  descent  of  real 
property,  embraces  all  persons,  collat- 
erals as  well  as  lineals,  through  whom 
an  inheritance  is  derived :  Wheeler  v. 
Clutterbuck,  52  N.  Y.  67. 

2  Hopkins  v.  McCann,  19  HI.  113; 
Marshall  v.  Rose,  86  HI.  374. 


3  Coke  Lit.  191. 

4Wms.  Real  Prop.  75;  2  Black. 
Com.  201;  3  Wash.  Real  Prop.  G; 
Moore  v.  Chandler,  59  HI.  466. 

5  The  word  "intestate"  properly 
signifies  a  person  who  died  without 
leaving  a  will ;  but  where  it  is  used 
with  respect  to  particular  property,  it 


573 


574  AHISTKACTS    OF    TITLE.  [§  543 

laws  of  descent.*    Posthumous  children  take  in  all  respects  as  though 
they  had  been  born  in  the  life-time  of  the  intestate.'' 

§  543.  Nature,  Operation  and  Incidents  of  the  Title.  The  title 
of  an  heir  is  not  so  much  an  acquisition  as  a  succession.  The  death 
of  the  ancestor  does  not  create  a  title,  but  rather  confirms  in  the 
heir  that  which  was  previously  inchoate,  uncertain  and  defeasible. 
"An  estate  of  inheritance  under  the  feudal  law,"  says  Mr.  Bing- 
ham," "existed  only  in  the  contract  between  the  lord,  for  himself 
and  his  heirs  on  the  one  side,  and  the  vassal,  for  himself  and  his 
heirs  on  the  other.  The  one  contracted  that  the  other  might  have 
the  possession  and  occupation  of  certain  lands,  usually  upon  the 
condition  of  rendering  in  return  therefor  certain  rents  and  serv- 
ices, which  the  latter  agreed  to  pay  and  perform.  The  heirs  of  each 
party  were  expressly  named,  and  regarded,  in  the  eyes  of  the  law, 
as  parties  to  the  contract ;  and,  when  the  original  parties  died,  the 
heirs  became  the  real  and  acting  parties  to  the  contract;  and  so 
parties  continued  to  succeed  each  other  from  one  generation  to 
another,  so  long  as  there  were  heirs  capable  of  becoming  parties. 
This  contract  right  of  possession  of  the  lands  constituted  what  is 
known  in  the  law  as  an  estate  of  inheritance,  or  an  estate  in  fee ;  and 
the  succession  of  one  person  on  the  death  of  another,  is  what,  in 
more  recent  times,  is  said  to  be  the  acquisition  of  title  by  descent." 

The  rules  governing  the  method  of  descent  and  the  classes  of 
heirs  who  shall  take,  as  well  as  the  order  in  which  they  shall  take, 
have  been  many  times  changed;  the  nature  of  the  estate  has  been 
enlarged;  the  right  of  alienation  during  life  and  disherison  after 
death  has  been  given  to  the  ancestor ;  the  estate  may  also  be  diverted 
from  the  heir  to  satisfy  the  ancestor 's  debts ;  yet  the  fundamental 
principle  of  inheritance  has  remained  practically  unchanged.  The 
contract  on  the  part  of  the  State  as  evidenced  by  the  original  grant 
still  is,  that  the  grantee  and  his  heirs  may  hold,  possess  and  enjoy 
the  land,  and  on  the  death  of  the  ancestor  the  heir  succeeds  to  his 
rights  in  virtue  of  the  original  agreement,  as  strictly  as  though  the 
right  or  power  of  alienation  did  not  exist.  The  estate  held  by  this 
title  possesses  none  of  the  attributes  of  the  ancient  feudal  estate, 

•ignifies   a  person  who  died  without  7  Smith  v.  McConnell,  17  111.  135; 

effectually  disposing  of  that  property  Sansberry  v.  McElroy,  6  Bush   (Ky.) 

by  will,  whether  he  left  will  or  not.  440. 

BLyon  V.  Kain,  36  111.  362.     In  all  8  Bing.    on    Descents,    2;    and    see 

cases  of  intestacy  the  lex  rci  sitce  gov-  Watk.  on  Descents,  65. 
ems  the  descent:     Lingen  v.  Lingen, 
45  Ala.  410. 


§  545]  DESCENTS.  575 

however,  but  is  entire  in  the  ancestor  and  his  heirs,  with  no  rever- 
sion or  other  feudal  incident.®  While  the  State  may  still  exercise 
the  right  of  escheat  yet  this,  under  modern  statutes,  is  in  no  proper 
sense  a  reversion. 

§  544.  Inheritance  a^  Dependent  upon  Seizin.    It  was  a  primal 

rule  of  the  common  law  that  no  person  could  inherit  real  estate, 
unless  he  was  heir  to  the  person  last  seized.  Under  the  applica- 
tion of  this  rule  it  was  not  sufficient  to  be  heir  to  the  person  who 
last  had  the  right  to  the  land,  but  not  the  actual  seizin  or  possession. 
This  rule  grew  out  of  the  feudal  doctrine,  which  required  the  heir 
to  be  of  the  blood  of  the  first  purchaser,  and  the  seizin  of  the  last 
possessor  was  regarded  as  presumptive  evidence  of  this  fact.^**  The 
rule  was  subject  to  some  exceptions  in  England.  In  this  country 
it  has  never  been  adopted  in  a  majority  of  the  States,  while  in  the 
others  it  has  been  expressly  abrogated,  and  every  possible  right  or 
title  which  the  ancestor  may  have  had  in  land,  whether  accompanied 
by  actual  seizin  or  possession,  or  not,  is  rendered  transmissible  by 
inheritance,  with  the  exception  of  estates  for  years,  which  are  re- 
garded as  chattels,  and  estates  for  his  own  lif e.^^  The  word  ' '  seizin ' ' 
is  now  equivalent  to  "ownership,"  and  though  the  term  is  still  re- 
tained both  in  the  statutes  and  the  language  of  the  courts,  its  legal 
significance  does  not  extend  further  than  above  stated,  and  is  in  no 
way  dependent  upon  possession.  Every  right  or  interest,  legal  or 
equitable,  to  which  the  intestate  was  in  any  manner  entitled  at 
his  decease,  except  estates  which  come  within  the  definition  of  chat- 
tels, real,  are  valid  subjects  of  descent. 

§545.  Heirship — Its  Rights  and  Privileges.  The  title  of  an 
heir  is  held  in  his  own  right,^^  subject  only  to  the  payment  of  the 
debts  of  the  ancestor,^'  or  the  fulfillment  of  his  covenants,^*  and 
though  he  may  afterward  be  divested  by  the  decree  of  the  probate 
court  and  sale  by  the  administrator,^^  yet  until  such  contingency 
he  is  the  owner,  and  entitled  to  all  rents,  profits  or  other  beneficial 
incidents  flowing  from  the  land.^^    Subject  to  the  lien  of  the  eredi- 

SHaynes    v.    Bourn,    42    Vt.    686;  l2WaUbridge  v.  Day,  31   111.   379. 

Wallace  V.  Harmstad,  44  Pa.  St.  429.  13  Folt/.    v.    Prouse,    17    111.    487; 

10  Co.  Lit,  14;  Watk.  on  Desc.  65.  Cockerel  v.  Coleman,  55  Ala.  583. 

11  Kent  Com.  388 ;  Jadcson  v.  Hen-  14  Miller  v.  Bledsoe,  61  Mo.  96. 
dricks,    3    John.    Cas.    214;    Bates   v.  ISBickford    v.    Stewart,    55    Wash. 
Schraeder,    13    John.    260;    3    Watk.  278,  104  Pac.  263. 

(Ohio)    333;    Williams   v.   Amon-,    14  16  Foltz    v.     Prouse,     17     111.    487. 

Mass.    20.  This   old    rule  hns   been    infritifjjfd    in 


576  ABSTRACTS   OF   TITLE.  [§  545 

tors,  lit'  may  inakf  any  disposition  of  llio  land  ho  may  choose,  and 
aitor  dno  probate  and  administration,  together  with  an  extinguish- 
ment of  the  ancestor's  debts,  the  title  becomes  perfect  in  him  or  his 
assigns. ^'^  lie  is  favored  by  the  law,  and  his  inheritance  is  never 
defeated  except  by  the  clearest  proof  of  intention  on  the  part  of 
the  ancestor,  and  although  he  is  expressly  excluded  by  the  terms  of 
a  will,  yet  unless  some  valiil  and  etfei-tual  disposition  of  tlie  land 
is  made  to  some  other  person,  it  descemls  to  him  by  operation  of 
law,  and  in  case  of  an  invalid  or  insufficient-  devise,  he  takes  in 
preference  to  the  residuary  devisee.^* 

§  546.  The  Line  of  Succession.  The  law  invests  the  iieir  with 
the  title  of  the  ancestor,  but  it  also  designates  wdio  is  to  be  that 
heir,  and  in  this  respect  is  rigid,  arbitrary  and  unyielding. ^^  The 
common  law  canons  of  descent  ^°  have  no  application  in  tlie  United 
States,  but  rules  have  been  established  in  every  State  that  regulate 
the  line  of  succession  and  declare  who,  under  certain  conditions, 
shall  be  the  heir.  Suceession  in  the  United  States,  fis  in  England, 
follows  the  line  of  consanguinity,^^  except  where  the  surviving 
husband  or  wife  is  allowed  a  participation  as  a  successor,  and  a 
person,  to  successfully  establish  his  claim  of  title,  must  bring  him- 
self within  one  of  the  classes  prescribed  by  the  statute,  as  well  as 
show  that  no  nearer  degrees  of  kindred  exist  which  by  statute 
would  defeat  the  claim  which  he  asserts. 

§  547.  General  Rules  of  Descent.  While  there  is  a  sad  lack  of 
liarmony  in  the  statutes  of  descent  of  the  different  States,  which 

some  States  permitting  the  admin-  descendants  in  infinituvi,  of  any  per- 
istrator  to  take  the  rents  and  profits  .son  decoa.sed,  should  represent  their 
pending  the  final  settlement  of  the  ancestor;  5,  on  failure  of  lineal  de- 
ancestor's  estate.  scendants,  the  inheritance  should  de- 
ITVansyekle  v.  Richardson,  13  111.  scend  to  the  collateral  relations, 
171;   Austin  v.  Bailey,  37  Vt.  219.  being  of  the  blood  of  the   first  pur- 

18  Ilaxton  V.  Corse,  2  Barb.  Ch.  chaser,  subject  to  the  three  preceding 
506;  Roosevelt  v.  Fulton,  7  Cow.  71.  rules;    6,    the   collateral   heir   of   the 

19  Tyler  v.  Reynolds,  53   Iowa  146.  person   last   seized   must  be  his   next 

20  There  were  seven  common  law  collateral  kinsman  of  the  whole  blood  ; 
canons  of  descent  to  the  effect:  1,  7,  in  collateral  inheritances,  the  male 
that  inheritance  should  always  de-  stock  should  be  preferred  to  the  fe- 
scend  lineally,  and  never  ascena  male,  unless  where  the  lands  had,  in 
lineally;  2,  that  males  are  always  fact,  descended  from  a  female:  2 
preferred  to   females;    3,   of  two   or  Black.    Com.    208,    234. 

more     males     in     equal     degree,     the  21  See  Table  of  Consanguinity,  §  31 

eldest      only      should      inherit,      but       of  this  work, 
females   all   together;    4,   that   lineal 


§  549]  DESCENTS.  577 

not  only  prevents  the  formulation  of  a  positive  rule  but  also  any  in- 
telligent method  of  general  treatment,  it  may  yet  be  said  that  five 
well  defined  principles  relative  to  the  succession  are  discernible. 
The  descent  in  accordance  with  these  principles  is  as  follows :  R«al 
estate  of  an  intestate  descends  (1)  to  his  lineal  descendants,  ex- 
cept where  a  surviving  consort  is  allowed  to  participate;  (2)  to 
his  father,  varied  in  some  cases  by  a  participation  of  brothers  and 
sisters;  (3)  to  his  mother,  varied  as  before  by  collateral  partici- 
pation; (4)  to  his  collateral  relatives;  and  (5)  to  the  State  by 
escheat.  These  five  elementary  principles  are  covered  by  a  net- 
work of  conditions  and  provisos,  differing  more  or  less  in  every 
State,  and  the  application  of  these  conditions  governs  the  descent, 
and  directs  it  into  some  one  of  the  channels  above  enumerated.  In 
all  cases  not  provided  for  by  the  statute,  the  inheritance  descends 
according  to  the  course  of  the  common  law. 

§  648.  The  Right  of  Representation.  This  is  the  right  of  the 
lineal  descendants  to  take  the  portion  which  their  ancestor  would 
have  taken,  and  is  called  inheritance  per  stirpes.  It  is  a  statutory 
right,  and  by  reason  of  the  diversity  of  the  statutes  of  the  different 
States,  no  positive  rule  can  be  stated.  Generally,  if  one  of  several 
children  shall  have  died  before  the  ancestor,  the  heirs  of  such 
child  will  take  the  portion  which  would  have  descended  to  it  if  it 
had  survived  the  ancestor,'^^  and  the  same  rules  apply  for  deter- 
mining who  are  the  heirs  of  such  child,  as  in  any  other  case  of 
descent.  In  a  few  States,  where  an  intestate  leaves  grandchildren 
only,  they  all  take  per  capita,  or  in  their  own  right,**  but  as  a  rule 
of  more  general  observance,  the  lineal  descendants  represent  only 
their  ancestor.** 

§549.  Preferences.  By  the  common  law  canons  of  descent, 
males  were  preferred  before  females,  the  eldest  male  taking  in 
preference  to  others  of  equal  degree,  and  females  equally,  while 
in  collateral  inheritance  the  male  stocks  were  always  preferred  to 
the  female,  except  where,  in  fact,  the  lands  had  descended  from  a 
female.     This  ha'j  all  been  abolished  by  the  statutes  of  descent 

22  Dodge  V.   Beeler,  12  Kan.  524;  at  common  law,  only  by  the  applica- 

Crump  V.  Faucett,  70  N.  C.  345.  tion  of  that  rule,   descendants   of  a 

28  Cox  V.  Cox,  44  Ind.  368;  Eshle-  person    deceased    in   infinitum   repre- 

man's  Appeal,  74  Pa.  St.  42.     Com-  sented  their  ancestor,  and  only  when 

pare  Harris'  Estate,  74  Pa.  St.  452.  the    representation     failed    were    the 

24  This  is  somewhat  in  accordance  lineal  descendants  of  the  intestate 's 

with  the  fourth  canon  of  inheritance  next  of  kin  permitted  to  come  in. 
Warvelle  Abstracts — 37 


578  ABSTRACTS  OF  TITLE.  [§  549 

which  proviile  in  ;ill  cases  for  ('(jual  i)arti(.'ipation  ainon<i:  the 
iiu'inbers  of  a  class,  and  the  riglit  of  primogeniture,  if  it  ever 
existed  in  this  country,  is  now  unknown. 

§  550.  Who  May  Take  By  Descent — Aliens.  There  is  a  mass 
of  curious  ami  ol)solcte  learning  in  the  books,  rehitive  to  persons 
capable  of  succeeding  to  an  inheritance,  for  the  law  formerly 
guarded  the  landed  estates  of  the  country  with  jealous  care,  and 
ruthlessly  excluded  from  a  succession  thereto  all  persons  who  owed 
fealty  to  another  sovereign.  Inheritaiu'c  was  long  contined  to  citi- 
zens of  the  United  States,  and  aliens  were  expressly  declared  in- 
capable of  taking  lands  by  descent,  or  other  mere  operation  of  law, 
and  because  an  alien  could  have  no  inheritable  blood  through  which 
title  could  be  deduced,  a  citizen  was  precluded  from  asserting  a 
title  so  derived.  In  case  of  the  death  of  an  alien  owning  lands, 
or  of  a  citizen  without  other  than  alien  heirs,  the  lands  of  such 
persons  escheated  to  the  State.^^  Private  laws  were  often  passed 
to  enable  individuals  to  receive  and  transmit  title,  and  the  effect 
of  such  laws  was  to  invest  the  person  mentioned  with  inheritable 
blood  and  to  enable  him  to  alien  or  devise  his  property  and  to 
transmit  by  descent  in  all  respects  the  same  as  a  citizen  of  native 
birth,^^  but  not  to  remove  the  barrier  against  alien  heirs.  All  of 
this  grew  out  of  the  timidity  of  the  islander,  and  was  a  part  of 
our  inheritance  of  the  English  common  law. 

At  present  a  few  relics  of  the  narrow,  insular  ideas  of  the  com- 
mon law  may  still  be  found,  but  in  many  States  where  the  doctrine 
formerly  prevailed,  it  has  been  swept  away  by  the  liberal  policy 
of  later  years  and  in  other  States  it  never  had  a  recognition.  In 
a  few  States,  while  the  right  of  inheritance  is  not  denied  to  an 
alien,  it  is  yet  restricted  by  limitations  of  time,  value  and  quantity, 
but,  generally,  for  all  practical  purposes,  so  far  as  respects  the 
acquisition  and  descent  of  land,  the  alien  and  the  citizen  stand 
upon  an  equal  footing.^' 

In  the  examination  of  titles  an  inquiry  into  the  questions  just 
noted  is  sometimes  material  and  necessary,  and  if,  from  a  view 
of  the  facts  shown,  or  of  answers  to  inquiries  in  pais,  it  appears 
that  title  is  deduced  through  an  alien,  at  a  time  when  aliens  were 

26  Craig  V.  Radford,  3  Wheat.  363;  curtesy:      Mick    v.    Mick,    10    Wend. 

Doe    V.    Governeur,    11    Wheat.    352;  379. 

Jackson  v.  Green,  7  Wend.  333;  Levy  26  Parish    v.   Ward,    28   Barb.    328. 

V.   Levy,  6   Pet.   102.     This   extended  27  See    McConville    v.    Howell,     17 

as  well  to  the  estates  of  dower  and  Fed.  Rep.  104. 


§  551]  DESCENTS.  579 

incapable  of  transmitting  by  descent,^^  evidence  of  other  matters, 
sufficient  in  law  to  support  the  title  of  the  present  claimant,  should 
be  required  before  accepting  same.  The  laws  of  the  States  re- 
moving the  disabilities  of  alienage  and  granting  or  withholding 
the  privileges  of  citizenship,  are  not  usually  retroactive,  nor  do 
they  possess  any  extraterritorial  effect,  and  the  domicile  of  the 
ancestor  at  the  time  of  his  death  does  not  affect  the  application 
of  the  lex  rei  sitce,  for  no  State  can  prescribe  qualifications  of  citi- 
zenship, to  be  exercised  in  another  State,  in  opposition  to  its  local 
laws  and  policy,  and  even  the  clause  of  the  Federal  constitution 
declaring  that  the  citizens  of  each  State  are  entitled  to  all  the  privi- 
leges and  immunities  of  citizens  in  the  several  States,  is  not  suffi- 
cient to  overcome  the  rule.^® 

§  551.  Continued — Adoptive  Heirs.  The  rights  growing  out  of 
adoption  present  a  series  of  somewhat  similar  views.  This  act, 
being  in  derogation  of  the  common  law  and  of  natural  right,  con- 
fers upon  the  heir  by  adoption  rights  which  can  only  be  asserted 
strictly  within  the  law,  and  particularl}-  is  this  the  case  when 
title  is  claimed  in  States  other  than  that  under  whose  laws  the 
heirship  was  effected.  The  rights  of  inheritance  acquired  by  an 
adopted  heir  in  one  State  can  be  recognized  and  upheld  in  another 
State  only  so  far  as  they  are  not  inconsistent  with  the  law  of  de- 
scent of  such  latter  State,  and  his  inheritable  capacity  must  be 
measured  bj'  the  laws  of  the  State  where  the  land  is  situate,  and 
not  b}^  that  of  his  late  ancestor's  domicile,  or  the  State  conferring 
inheritable  blood.^° 

Unless  the  statute  expressly  confers  the  right,  an  adopted  child 
cannot  inherit  from  the  collateral  kindred  of  its  adoptive  parent, 
nor  from  the  ancestors  of  such  parent  or  his  natural  children.'^ 
In  other  words,  by  the  act  of  adoption  the  child  becomes  the  heir 
only  of  its  foster  parent. 

28  Sporadic  attempts  to  revive  the  30  Consult  Eoss  v.  Boss,  129  Mass. 
bar  against  alien  heirs  and  to  restrict  243;  Sewal  v.  Eoberts,  115  Mass. 
alien  ownership  will  be  found  in  the  262;  Keegan  v.  Geraghty,  101  111.  26. 
legislation  of  many  States.  The  31  Wallace  v.  Noland,  246  111.  535, 
effect  of  such  legislation  must  be  92  N.  E.  956;  Boaz  v.  Swinney,  79 
determined  by  local  laws  and  statu-  Kan.  332,  99  Pac.  621;  Merritt  v. 
torj'   construction.  Morton,  143  Ky.  133,  136  S.  W.  133, 

29  Gerard's   Titles,   89;    Corfield   v.  33  L.  R.  A.  (N.  S.)  139. 
Corgell,  4  Wash.    (C.  Ct.)   371;   Kee- 
gan v.  Geraghty,  101  111.  26. 


580  ABSTRACTS   OF   TITLE.  [§  552 

§  552.  Ancestral  Estates — Half  Blood.  A  marked  provision 
may  he  ol).servod  in  the  statntes  of  descent  of  many  States  in  rela- 
tion to  aneestral  estates  and  the  exelnsion  of  all  persons  who  do 
not  partake  of  the  hlood  of  sneli  an<'estor.  The  elause  in  question 
provides  in  snhstanee  that  in  ease  an  inheritanee  eomes  to  an  in- 
testate by  descent,  devise  or  gift  of  one  of  his  ancestors,  all  those 
not  of  the  blood  of  such  ancestor  shall  be  excluded  from  such 
inheritanee,  and  the  rule  observed  by  the  courts  is  general,  that 
onl}'  persons  of  ancestral  blood  can  inherit  ancestral  estates.^^  The 
current  of  later  decisions,  however,  is  uniform  in  declaring  that 
the  rule  has  reference  to  the  immediate  ancestor  from  whom  the 
intestate  received  the  inheritance,  and  not  a  remote  ancestor  who 
was  the  original  source  of  title.*' 

§  553.  Surviving  Consorts.  Husbands  and  wives  are  in  no 
sense  of  the  word  next  of  kin  to  the  other,^  but  inasmuch  as  heir- 
ship is  peculiarly  a  creation  of  the  legislature,  it  has  the  power 
to  make  a  surviving  husband  or  wife,  as  well  as  a  child,  an  heir, 
and  this  has  been  directly  or  indirectly  accomplished  in  a  number 
of  the  States.'*  But  further,  the  right  of  dower  has  been  radically 
chaiiged  in  a  few  States,  so  that  instead  of  the  use,  during  life,  of 
a  portion  of  the  husband's  estate,  the  fee  to  a  specific  quantity 
vests  absolutely  in  the  widow  upon  his  death,  and  though  it  will 
require  no  small  amount  of  astute  reasoning  to  discover  wherein 
such  procedure  does  not  constitute  a  descent,  3'et  the  courts  of 
such  States,  in  view  of  the  fact  that  the  statute  declares  that  she 
shall  be  "entitled,"  etc.,  have  decided  that  the  widow  does  not  take 
by  descent,  as  an  heir,  but  by  virtue  of  her  marriage  relation,  as  a 
widow.'^  Further  provision  for  a  surviving  consort  is  made  in 
some  States  where  the  deceased  spouse  leaves  no  children,  or  no 
kindred  of  any  kind,  and  in  such  event  the  survivor  takes  strictly 
as  an  heir.''' 

82  Campbell   v.   Ware,   27   Ark.   65;  to    relatives    by    blood.      See    Slosson 

Wheeler  v.  Clutterbuck,  52  N.  Y.  67;  v.    Lynch,    43    Barb.    (N.    Y.)    147; 

Perkins  v.  Simmonds,  28  Wis.  90.  Haraden  v.  Larrabee,  113  Mass.  430; 

33  Buckingham   v.  Jacques,  37  Con.  Dodge's  appeal,   106  Pa.  St.  216. 
402;   Curren  v.   Taylor,  19  Ohio,  36;  36  May   v.    Fletcher,    40    Ind.    577; 
Cramer's  Appeal,  43  Wis.  167;  Ryan  Dodge  v.  Beeler,  12  Kan.  524;  Ring- 
V.  Andrews,   21    Mich.   229;    Wheeler  house  v.  Keever,  49  111.  470. 

V.  Clutterbuck,  52  N.  Y.  67.  36  Brannon    v.    May,    43    Ind.    92 ; 

34  Townsend    v.    Radcliffe,    44    111.       May  v.  Fletcher,  40  Ind.  577. 

446;   Tilhnan  v.  Davis,  95  N.  Y.   17.  37  See,   York   v.   York,   38    111.    522. 

The  term  "next  of  kin"  refers  only 


§  557]  DESCENTS.  581 

§  554.  Coparceners.  Persons  to  whom  an  estate  of  inheritance 
descends  jointly,  and  by  whom  it  is  held  as  an  entire  estate,  are 
called  coparceners.^*  Formerly  in  England  the  term  included  all 
persons,  and  such  is  its  legal  signification  in  America,  but  its  pres- 
ent use  in  England  is  confined  to  females.^®  The  distinction  be- 
tween coparcenary  and  tenancy  in  common,  is  virtually  abolished 
in  the  United  States,  and  the  general  rules  relative  to  tenants  in 
common  have  the  same  application  whether  the  common  property 
be  derived  by  descent  or  by  purchase. 

§  555.  What  Descends.  Everything  comprised  in  the  term 
"lands,"  or  "lands,  tenements  and  hereditaments,"  descends  ac- 
cording to  law  to  the  heirs,  and  these  terms  include  every  estate, 
interest  and  right,  legal  and  equitable,  whether  in  possession  or 
expectancy,  vested  or  contingent,  except  such  matters  as  may  be 
determined  or  extinguished  by  the  death  of  the  intestate,  leases 
for  years,  and  estates  for  the  life  of  another.*® 

§  556.  How  Aflfecte'd  by  Ancestral  Covenants.     Heirs  are  not 

bound  by  the  covenants  of  their  ancestors,  further  than  the  real 
estate  descended  to  them  and  the  amount  of  their  distributive 
shares  of  their  ancestor's  personal  estate,*^  but  where  the  ancestor 
conveyed  with  warranty,  land  to  which  he  had  no  title,  or  in 
which  he  had  only  an  inferior  or  limited  estate,  his  heirs  must 
make  the  warranty  good  if  they  have  assets  by  descent  equal  to 
the  value  of  the  land.*^ 

§  557.  Liability  for  Ancestral  Debts.  An  heir  is  under  no  legal 
liability  to  discharge  the  debts  of  his  ancestor  from  whom  he 
takes  real  estate,  except  where  the  personal  estate  of  such  ancestor 
is  insufficient  to  pay  same,**  and  creditors,  in  the  first  instance, 
must  resort  to  the  personal  representatives  before  seeking  satis- 

88 1  Bou.  Law  Diet.  363 ;  2  Black.  43  McLean     v.     McBcan,     74     111. 

Com.   187.  134  J    Woodfin   v.    Anderson,   2    Tenn. 

39  4  Kent  Com.  462;  2  Bou.  Inst.  Ch.  331.  Though  customary,  it  is 
n.  1781.  not   accurate   to    say   that   lands   de- 

40  The  statute  usually  defines  the  scending  to  heirs  are  charged  with 
subject  of  inheritance,  but  the  above  the  debts  of  the  ancestor.  The 
is  the  substance  of  the  statute  as  lands  are  liable  only  to  be  charged 
generally   enacted.  with    the   payment   of   debts    upon   a 

41  Holder  v.  Mount,  2  Marsh.  deficiency  of  personal  assets ;  and 
(Ky.)    189.  this    right    may    be    lo.st    by    delay: 

42  Miller  v.  Bledsoe,  61   Mo.  96.  Bishop   v.   O'Connor,   69   111.   431. 


582  ABSTRACTS   OF   TITLE.  [§  557 

faction  of  tho  heirs.**  After  liavin<?  aecciitcd  the  succession,  they 
become  personally  liable  for  the  debts  of  the  ancestor,*^  but  only 
to  the  extent -of  wiiat  descends  to  them  from  sncli  ancestor.*^ 

§558.  Creditors'  Liens.  Even  though  a  title  by  descent  may 
be  perfect  in  the  person  asserting  same,  it  is  yet  liable  to  be  de- 
feated by  a  sale  made  in  satisfaction  of  the  ancestor's  debts,  and 
no  security  can  be  predicated  for  it  until  the  bar  of  the  statute  has 
intervened.  In  case  of  unprobated  estates  the  full  period  of  limi- 
tation must  have  expired  before  a  purchaser  can  feel  rea- 
sonably certain  as  to  the  stability  of  his  title,  and  where  there  is 
no  statute — as  is  generally  tlie  case — interposing  any  limitation 
of  time  within  which  the  lien  of  creditors  on  the  lands  of  a 
decedent  must  be  enforced,  difficult  and  embarrassing  questions 
are  presented,  for  which  no  absolute  rule  of  solution  can  be  given. 
The  questions  that  naturally  arise  are;  will  the  delay  and  laches 
of  the  creditor  destroy  his  lien  and  right  to  pursue  the  land  in  the 
hands  of  the  grantee  of  the  heir,  holding  under  a  conveyance  duly 
recorded,  and  if  so,  what  period  of  time  must  elapse?  Certainly 
the  lien  can  not  be  perpetual,  and  it  would  seem,  by  analogy 
to  the  liens  of  judgments  and  the  limitation  for  entry  upon 
land,  that  the  statutory  period  provided  in  those  cases  should 
bar  surh  lien,  and  this  has  been  the  view  taken  by  the  courts  in 
several  instances  when  such  questions  have  been  presented.'*'  The 
question,  however,  is  still  one  of  great  doubt  and  uncertainty. 
The  conclusion  above  stated  seems  in  every  way  just  and  equitable 
and  in  consonance  with  established  legal  rules,  yet  it  appears  to 
have  been  adopted  in  but  few  States.  The  preponderance  of  au- 
thority leaves  the  matter  open  and  indefinite.  It  is  agreed  that 
an  order  to  sell  landvS  should  be  procured  within  a  reasonable 
time,  but  what  is  a  reasonable  time  is  generally  left  to  the  discre- 

MMix      V.       French,      10      Heisk.  Ark.    229;    Branger  v.   Lucy,    82    111. 

(Tenn.)   377.  91  ;     Outright    v.    Stanford,    81     III. 

♦6  Succes.sion    of    Bougere,    28    La.  240. 

Ann.     743.       The     debts     chargeable  47  McCoy   v.    Morrow,    18    111.    519; 

upon   lands  descended   are  those  con-  Fitzgerald    v.    Glancy,    49    111.    465; 

tracted    by   the    decedent    owner,    not  Furlong  v.  Riley,   103   111.  638.     The 

those     incurred     by     his     representa-  policy    of    the    law    is,    repose    and 

tives    in    the    course    of    adniinistra-  security  of  titles  and  estates  against 

tion:      Allen  v.  Poole,  54  Miss.   323;  dormant     claims,     and      further,     to 

Porterfield      v.      Taliaferro,      9      Lea  afford    notice    of   liens    again.st    lands 

(Tenn.),  242.  through    the    public    records,    and    to 

46  Payson  v.  Hadduck,  8  Biss.     (C.  disfavor    those    liens    of   which    there 

Ct.)     293;     Williams    v.     Ewing,    31  has   been  no  public  notice. 


§  559]  DESCENTS.  583 

tion  of  the  courts  to  be  determined  upon  consideration  of  all  the 
circumstances  of  each  particular  case.** 

In  case  of  probated  estates,  a  shorter  period  is  required.  The 
limit  of  the  time  when  application  can  be  made  by  creditors 
to  sell  the  lands  of  the  decedent,  is  variously  fixed  at  from  one 
to  four  years  from  the  granting  of  letters  of  administration.  Dur- 
ing this  period  the  land  remains  subject  to  sale,  in  case  of  a  defi- 
ciency of  personal  assets,  not  only  in  the  hands  of  the  heirs,  but 
of  every  subsequent  purchaser,*^  and  the  title  made  at  such  sale 
will  be  paramount  to  all  titles  made  by  or  through  the  heirs.^® 
There  is  no  prohibition  to  the  alienation  of  the  land  before  the  ex- 
piration of  the  prescribed  period,  for  the  heir  may  sell  and  convey 
at  any  time  after  the  death  of  the  ancestor,  but  if  he  should  convey 
before  the  expiration  of  that  period,  the  lands  pass  subject  to  the 
power  of  the  probate  court  to  order  a  sale  for  the  payment  of 
debts,  which  is  a  kind  of  statutory-  lien  running  with  the  land. 
After  the  expiration  of  the  statutory  period,  the  power  of  the 
probate  court  ceases ;  the  land  is  discharged  from  the  lien ;  and 
the  heir  may  sell,  and  l)0)ia  fide  purchasers  will  take  the  estate, 
freed  and  discharged  from  the  debts.^^ 

The  foregoing  is  based  upon  decisions  made  in  pursuance  of 
local  statutes,  but  will  probably  serve  as  a  general  exposition  of 
the  law  in  all  States  so  far  as  respects  creditors  who  fail  to  present 
or  prove  their  claims. 

§  559.  Equitable  Conversion.  The  succession  of  the  heir  may 
also  be  defeated  by  what  is  known  as  equitable  conversion,  as 
where  the  ancestor  had  made  a  valid  contract  of  sale  but  died 
before  its  consummation  by  deed.     In  such  a  case  equity  will  in- 

48  Hatch  V.  Kelly,  63  N.  H.  29 ;  that  it  can  not  be  sold  under  a 
Guuby  V.  Brown,  86  Mo.  253 ;  Mays  judgment  against  him ;  but  the 
V.  Eogers  (37  Ark.  155;  Liddel  v.  creditor  must  satisfy  his  judgment 
McVickar,  11  N.  J.  L.  44;  Fergusen  out  of  other  property  of  the  heir  to 
V.  Scott,  49  Miss.  500.  the   extent   of  the  value   of  the   land 

49  Hyde  v.  Tanner,  1  Barb.  79 ;  so  aliened :  Vansyckle  v.  Richard- 
Hill    V.    Treat,    67    Me.    501 ;    McCoy  son,   13   111.    171. 

V.   Morrow,   18   111.  519.  61  Collamore    v.    Wilder,    19    Kan. 

60  Meyer  v.  McDougal,  47   111.   278.  67;    Sevier    v.    Gordon,    29   La.    Ann. 

The    same    is    equally    true    of    dev-  440;    Hyde   v.    Tanner,    1    Barb,    79; 

isees:      Hyde  v.   Tanner,   1   Barb.  79.  Nowell    v.     Bragdon,     14     Me.     320; 

But     where     the     creditor     proceeds  Aiken     v.     Morse,     104     Mass.     277. 

directly     against     the     heir,     if     the  This   is   a  matter   of   statutory   regu- 

real    estate    has    been    sold    by    such  lation;    consult    local   statutes. 
heir    in    good    faith,    it    would    seem 


584  ABSTRACTS    OP    TITLE.  [§  559 

terveiie,  on  the  familiar  principles  heretofore  shown. *^  In  the 
event  just  noted,  the  purchase  money  accrues  to  the  executor  or 
administrator,  and  not  to  the  heirs,*^  while  on  the  contrary,  if  tli' 
ancestor  had  purchased  hind  but  received  no  conveyance,  the  title 
subsequently  acquired  would  inure  to  the  heirs,  even  though  the 
administrator  paid  the  purchase  money. 

§  560.  Proof  of  Heirship.  Title  by  inheritance  or  succession 
accrues  only  to  tiie  issue  of  lawful  wedlock,^*  and  can  be  asserted 
only  by  the  person  or  persons  who  can  bring  themselves  within  the 
line  of  succession  provided  by  the  statute.  To  successfully  assert 
the  title,  therefore,  it  is  necessary  for  the  heir  to  prove:  (1)  the 
death  of  the  ancestor,  and  lawful  seizin  in  him  of  the  subject-mat- 
ter of  the  title  at  the  time  of  such  decease;  (2)  the  marriage  of 
his  parents;  and  (3)  proof  of  his  legitimacy  or  a  lawful  adoption. 
These  three  points  satisfactorily  established,  the  law  will  invest 
him  with  title  to  such  portion  of  the  ancestor's  estates  as,  under 
the  statute,  he  is  entitled  to  take.  To  prove  heirship  in  a  collateral 
line,  a  party  must  show  the  descent  of  himself  and  the  person  last 
seized,  from  some  common  ancestor,  and  the  extinction  of  all  those 
lines  of  descent  which  would  claim  before  him." 

In  contests  concerning  the  succession,  these  matters  are  proved 
in  a  variety  of  ways,  but  mainly  upon  the  established  precedents 
of  the  common  law,  which  will  be  discussed  in  succeeding  para- 
graphs. The  difficulties  which  may  attend  the  judicial  determina- 
tion of  questions  of  heirship,  including  the  ascertaining  who  are 
entitled  to  succeed  to  an  intestate's  real  estate,  do  not  seem  to  be 
provided  for  by  statute  in  a  majority  of  the  States,  though  an  at- 
tempt has  been  made  in  some  to  provide  means,  by  a  proceeding  in 
probate,  for  obtaining  presumptive  evidence  of  the  facts  as  to  the 
persons  who  constitute  the  heirs  at  law  of  a  deceased  person.^* 

62  See  Chap.  XVIII,  Agreements  the  property  of  an  intestate  is  made 
for  Conveyances.  to    descend   to    and   among    the   chil- 

63  The  heirs  in  such  a  case  would  dren  and  their  descendants,  has  ref- 
take  the  legal  title  by  descent,  but  erence  to  lawful  children  only,  and 
only  as  trustees:  Johnson  v.  Cor-  does  not  do  away  with  the  common 
bett,  11  Paige,  265;  Moore  v.  Bur-  law  rule,  which  prevents  illegitimate 
rows,  3-t  Barb.  173;  Smith  v.  Smith,  children  from  inheriting  anything: 
55  111.  204;   Eaton  v.  Bryan,   18   111.  Blacklaws  v.  Milne,  82  111.  505. 

525.  65Emmerson    v.    White,    29    N.    H. 

64  It     is     a     rule     of     construction       482. 

that,    prima    facie    the    term    ' '  chil-  66  See,  N.  Y.  Civ.  Co.  Proc.  §  2654. 

dren"    means    lawful    children,    and       This  is   done   by  petition   describing 
the    statute    of    descents,    by    which       the  real  estate ;  setting  forth  the  facta 


§  562]  DESCENTS.  585 

Ordinarily  the  meager  proof  offered  by  the  administrator,  upon 
the  application  for  letters  of  administration,  is  the  only  record 
proof  of  heirship  available  in  the  compilation  of  an  abstract,  and 
though  the  decree  or  adjudication  may  find  the  persons  mentioned 
in  his  petition  the  onl}-  heirs  at  law  of  the  decedent,  it  is  not  con- 
clusive on  that  point,  and  is  done  rather  for  the  purpose  of  fixing 
the  right  of  the  person  appointed  to  administer,  and  for  his  guid- 
ance in  the  distribution  of  the  personalty,  than  to  establish  the 
claims  of  the  heirs  to  the  realty  through  descent. 

§  561.  Proof  of  Adoption.  Where  the  heir  is  such  by  adoption 
and  not  by  blood,  it  may  be  well,  in  proper  cases,  to  require  fur- 
ther proof  of  heirship  than  is  afforded  by  the  finding  of  the  probate 
court.  This  would  be  accomplished  by  showing  the  decree  of  adop- 
tion. The  right  of  adoption  is  not  of  common  law  origin  but  is 
borrowed  from  the  civil  law,  and,  in  every  instance,  is  purely  statu- 
tory. It  is  necessary,  therefore,  that  the  facts  essential  to  the 
exercise  of  this  special  jurisdiction  should  be  shown  by  the  record, 
and  to  give  a  decree  of  adoption  any  force  or  effect  the  court  pro- 
nouncing same  must,  as  a  rule,  have  acquired  jurisdiction  (1)  over 
the  person  seeking  to  adopt  the  child;  (2)  over  the  child;  and  (3) 
over  the  parents  of  such  child."  In  other  words,  the  statute  must 
in  all  cases  be  complied  with ;  ^'  its  terms  and  conditions  must  be 
fulfilled ;  and  if  the  specified  requisites  ^^  are  not  performed,  then 
the  act  is  incomplete  and  the  child  can  not  inherit  from  the  par- 
ent by  adoption.^®  Where  the  statute  provides  specifically  the 
means  whereby  one  sustaining  no  blood  relation  to  an  intestate 
may  inherit  his  property,  the  rights  of  inheritance  must  be  ac- 
quired in  that  manner,  and  can  be  acquired  in  no  other  way.®* 

§  562.  Proof  of  Death.    To  establish  the  claim  of  the  heir  it  is 

necessary  to  prove  the  death  of  the  ancestor,  and,  in  the  absence 

upon  which  the  jurisdiction  of  the  69  Usually  the  consent  of  the  par- 
court  depends;  the  interest  of  the  pe-  ents  or  surviving  parent  of  the  child 
titioners  and  other  heirs;  and  pray-  is  required,  and  if  the  child  is  over 
ing  for  a  decree  establishing  the  the  age  of  consent,  its  own  consent 
rights  of  inheritance ;  hut  this  pro-  as  well.  Where  these  requisites  are 
ceeding  does  not  affect  the  right  or  specified  they  are  vital, 
interest  of  a  person  not  a  party  60  Luppie  v.  Winans,  37  N.  J.  Eq. 
thereto.  24.5;   Foster  v.  Waterman,   124  Mass. 

67  Ferguson  v.  Jones,  17  Oreg.  204.  .592. 

6»  Tyler     v.     Reynolds,     53     Iowa,  61  Shearer  v.  Weaver,  56  Iowa,  578, 
146;    Keegan    v.    Geraghty,    101    111. 
26. 


586 


ABSTRACTS   OF    TITLE. 


[§562 


of  proof,  all  the  presumptions  are  that  an  individual  is  still  \i\- 
ing.®^  P^r  certain  purpases  an  absence  of  seven  years  without  tid- 
ings has  been  held  to  create  a  presumption  of  death,^^  but  this 
presumption  is  repelled  by  very  slight  facts  and  circumstances^* 
and  courts  have  refused  to  entertain  the  presumption  after  an  in- 
terval of  absence  and  silence  of  twenty  years,  where  the  circum- 
stances rendered  it  improbable  that  a  party,  if  alive,  would  have 
communicated  with  her  friends.^^  "Scarcely  any  length  of  time," 
observes  a  Canadian  writer,^^  "will  be  sufficient  to  compel  an  un- 
willing purchaser  to  take  a  title  depending  on  such  a  presumption 
of  death,  unless  made  with  reference  to  the  age  of  the  party  said 
to  be  deceased ;  and  if  the  party  whose  death  is  asserted  was,  when 
last  heard  of,  very  young,  the  period  must  be  that  beyond  which 
human  life  does  not  commonly  extend."  Instances  similar  to  that 
cited  by  the  writer  just  quoted  must,  however,  be  of  very  rare  oc- 
currence in  the  United  States  as  other  agencies,  arising  from  tax- 
ation, adverse  possession,  statute  of  limitations,  etc.,  might,  under 


62  Martinez  v.  Vives  Succession,  32 
La.  Ann.  305;  Mosheimer  v.  Ussle- 
man,  36  111.  232;  Whiting  v.  Nicoll, 
46  111.  230.  Great  lapse  of  time  ^vill, 
of  course,  rebut  the  presumption,  and 
in  the  interval  of,  say  one  hundred 
years,  a  party  must  be  presumed  to 
have  died  in  the  ordinary  course  of 
nature.  The  civil  law,  however,  pre- 
sumes a  person  living  at  one  hundred 
years  of  age,  and  the  common  law 
does  not  stop  much  short  of  this. 
See  Watson  v.  Tindal,  24  Ga.  494. 

63  Whiting  v.  Nicoll,  46  111.  230; 
Dart,  on  Vend.  315 ;  Hubback  ou 
Sue.  (Eng.)  179;  Newman  v.  Jen- 
kins, 10  Pick.  155;  Wambough  v. 
Schenk,  1  Pa.  229;  Davie  v.  Briggs, 
97  U.  S.  628;  Adams  v.  Jones,  39 
Ga.  479. 

64  Smith  v.  Smith,  49  Ala.  158; 
Brown  v.  Jewett,  18  N.  H.  230;  Mod- 
ern Woodmen  v.  Gerdom,  72  Kan.  391, 
82  Pac.  1100,  2  L.  R.  A.  (N.  S.)  809. 
A  failure  to  hear  from  an  absent  per- 
son for  seven  years,  who  was  known 
to  have  had  a  fixed  place  of  residence 
abroad,  would  not  be  sufficient  to 
raise  a  presumption  of  his  death,  un- 


less due  inquiry  had  been  made  at 
such  place  without  getting  tidings 
from  him.  Wontworth  v.  Wontworth, 
71  Me.  72. 

65  Taylor  on  Titles,  65;  Bowden 
v.  Henderson,  2  Sm.  &  G.  (Eng.)  560. 
On  the  other  hand  one  may  be  pre- 
sumed to  be  dead  before  the  expira- 
tion of  the  lapse  of  time  requisite  to 
establish  the  presumption  in  the  case 
of  absence  without  being  heard  from, 
if  there  is  sufficient  evidence,  though 
circumstantial  only,  to  fairly  induce 
a  belief  in  the  fact  that  death  has 
occurred :  Boyd  v.  Ins.  Co.,  34  La. 
Ann.  848.  The  presumption  varies 
somewhat  according  to  the  subject  to 
which  it  is  applied ;  this  is  strikingly 
illustrated  in  the  case  of  second  mar- 
riages, where  more  liberal  intend- 
ments are  permitted,  than  in  case  of 
succession  and  descent.  See,  Cooper 
V.  Cooper,  86  Ind.  75;  Williams  Es- 
tate, 13  Phil.  (Pa.)   325. 

66  Taylor  on  Titles,  65;  citing  Lee 
on  Abstracts,  467.  And  see,  O'Gara 
V.  Eisenlohr,  38  N.  Y.  296;  Watson 
V.  Tindal,  24  Ga.  274;  Sprig  v. 
Moale,  28  Md.  497. 


§  562]  DESCENTS.  587 

proper  circumstances,  validate  and  make  good  a  title  derived  by 
succession  even  though  defective  in  itself  and  founded  upon  in- 
sufficient evidence  of  ancestral  death. 

The  ordinarj^  evidence  of  death  in  England  consists  of  entries 
in  parochial  registers,  or  certified  copies  of  same,  and  declarations 
as  to  the  identity  of  the  parties ;  these  registers,  however,  do  not 
seem  to  be  evidence  of  the  time  of  death,  and  disclose  the  fact  only 
inferentially,  as  by  showing  that  it  must  have  occurred  before  the 
date  of  burial,  of  which  fact  they  seem  to  be  evidence.^'^  Such  evi- 
dence has,  however,  been  received  in  the  United  States,^^  particu- 
larly^ in  proving  pedigrees,  but  is  of  doubtful  character,  unless 
aided  by  statute.  To  remedy  the  defects,  inaccuracies,  omissions, 
etc.,  of  parish  registers,  as  well  as  to  provide  some  tangible  evi- 
dence of  births,  marriages  and  deaths,  for  the  large  class  who 
would  not  be  affected  by  such  registers  in  a  country  where  a  com- 
plete disassoeiation  of  church  and  State  is  observed,  many  of  the 
States  have  provided  a  special  registration  of  such  facts  in  the 
permanent  archives  of  the  counties. 

Where  the  question  arises  in  the  examination  of  title,  and  no 
other  or  better  evidence  can  be  adduced,  it  is  customary  to  procure 
the  affidavits  of  eye  witnesses  who  are  conversant  with  the  fact. 
Thus,  the  affidavit  of  the  attending  physician,  or  the  undertaker, 
or  a  person  who  knew  deceased  in  life  and  saw  his  remains  in  the 
coffin,  are  often  resorted  to  in  cases  of  difficulty  and  to  sustain  con- 
veyances by  alleged  heirs. 

Granting  of  letters  of  administration  is  prima  facie  evidence  of 
the  death  of  the  party  upon  whose  estate  thej^  are  issued,  but  the 
presumption  thus  raised  is  of  the  lowest  class ;  is  weak  and  incon- 
clusive, and  may  be  rebutted  by  slight  evidence.^* 

Death,  like  any  other  fact,  may  be  proved  by  circumstantial  evi- 
dence ;  hence  a  sudden  disappearance,  particularly  if  coupled  with 
an  unsound  mental  or  physical  condition, '°  or  proof  of  a  wreck 
of  a  vessel  in  which  the  ancestor  was  known  to  have  taken  passage, 
or  any  other  circumstances  from  which  the  death   of  the  person 

67  Dart  on  V.  &  P.  *  176.  were  held  to  be  admissible  in  a  land 

68  Hyam  v.  Edwards,  1  Dall.  (U.  controversy  in  Kentucky,  tried  in  one 
S.)  2;  Duplessis  v.  Kennedy,  6  La.  of  the  courts  of  the  United  States. 
231 ;  Jackson  v.  Boneham,  15  Johns.  It  was  there  held,  expressly,  that 
(N.  Y.)  226.  The  question  was  de-  they  were  competent  testimony.  Lewis 
cided  in  favor  of  such  entries  in  an  v.  Marshall,  5  Pet.  (U.  S.)  470. 
early  case  in  the  Supreme  Court  of  69  Tisdale  v.  Ins.  Co.,  26  Iowa  170. 
the  United  States,  where  entries  of  70  John  Hancock,  etc.,  Co.  v.  Moore, 
burial    in    a    church    in    Philadelphia  34  Mich.  41. 


588  ABSTRACTS   OF   TITLE.  [§  562 

may  be  reasonably  int'eircd,  are  all  competent  to  show  the  tact  in 
conueetion  witli  long  and  unexplained  absence.  Where  several 
lives  are  lost  in  the  same  disaster,  there  is  no  presumption  from 
age  or  sex  tiiat  either  survived  the  other,  nor  is  it  presumed  that 
all  died  at  the  same  moment;  but  the  fact  of  survivorship,  like 
evciy  other  fact,  must  be  proved  by  the  party  asserting  it.*^^  In 
tiic  absence  of  evidence  from  which  the  contrary  may  be  inferred, 
all  may  be  considered  to  have  perished  at  the  same  moment;  not 
because  that  fact  is  presumed,  but,  because  from  a  failure  of  those 
asserting  it  to  prove  to  the  contrary-,  property  rights  must  neces- 
sarily be  settled  on  that  theory.'^  All  cases  involving  the  ques- 
tion of  survivorship  must  be  determined  upon  their  own  peculiar 
facts  and  circumstances  whenever  the  evidence  is  sufficient  to  sup- 
port a  linding  of  survivorship;  in  the  absence  of  such  evidence  the 
question  of  survivorship  must  necessarily  be  regarded  as  unaseer- 
tainable. 

§  563.  Continued — Official  Registration.  In  States  vv^here  a  sys- 
tem of  official  registration  prevails,  all  persons  or  societies  solemniz- 
ing marriages ;  all  physicians,  or  other  professional  persons,  under 
whose  care  a  birth  shall  occur,  or  in  case  of  no  professional  at- 
tendance, then  the  mother;  and  all  persons  who  shall  be  in  at- 
tendance professionally  at  the  time  of  the  death  of  any  person, 
are  required  to  transmit  to  the  recording  officer  of  the  county  a 
statement  under  their  hands  of  the  facts  attending  such  marriage, 
birth  or  death,  and  a  register  of  the  facts  so  returned  is  kept  by 
such  officer.    A  transcript  of  such  registry  is  further  required  to 

71  Newell  v.  Nichols,  75  N.  Y.  78 ;  law  the  presumptions  were  never  in 
Coye  V.  Leach,  8  Met.  (Mass.)  371;  favor  of  contemporaneous  death.  If 
U.  S.  Casualty  Co.  v.  Kacer,  169  Mo.  a  father  and  his  son  perished  in  the 
301,  69  S.  W.  370;  Cowman  v.  Rogers,  same  battle  or  shipwreck,  the  son 
73  Md.  403,  21  Atl.  64,  10  L.  E.  A.  above  the  age  of  puberty  was  pre- 
550.  sumed   to    have   survived   his   father; 

72  This  is  the  generally  accepted  under  that  age  to  have  predeceased 
doctrine  in  all  the  States  which  de-  him.  This  was  upon  the  idea  that 
rive  their  systems  of  jurisprudence  in  the  former  case  the  son  was  usually 
from  the  common  law;  under  the  stronger,  in  the  latter  case  weaker, 
civil  law,  however,  there  is  no  room  than  his  father.  So  if  persons  perish - 
for  dispute  on  the  subject,  it  being  ing  in  the  same  disaster  were  all 
tiie  invariable  rule  of  the  civilians  under  fifteen,  the  presumption  of  sur- 
that  Avhen  a  parent  and  his  grown  vivorship  was  with  the  elder;  if  all 
child  perish  together,  the  manner  wore  over  sixty,  with  the  younger, 
thereof  being  unknown,  the  child  Similarly  the  wife  (iMjing  of  the 
shall  be  supposed  to  survive  the  weaker  sex)  was  presumed  to  have 
parent.        According    to    the    Eoman  yielded  first  to  the  common  peril. 


§  564]  DESCENTS.  589 

be  transmitted  semi-annually  to  the  Secretary  of  State  to  be  by 
him  preserved  at  the  seat  of  government.'^  This  record,  when  made 
and  kept  pursuant  to  law,  is  received  as  presumptive  evidence  of 
the  marriage,  birth  or  death  so  recorded.'*  When  no  probate  pro- 
ceedings have  been  had,  this  method  of  proof,  if  available,  should 
be  resorted  to  for  the  purpose  of  showing  the  death  of  the  ances- 
tor, as  well  as  the  birth  and  legitimacy  of  the  heir  claimant.  The 
facts  of  a  death  certificate  may  be  stated  in  this  manner: 

Proof  of  Death  ]  Certificate  by  Wm.  M.  Farr,  M.  D. 

of  I  Dated  March  10,  18^3. 

George  Williams.  ^Recorded  March  11,  1883. 

Doc.  200,110.  J  Death  Register  "A,"  page  20.88. 

Certifies  that  George  Williams,  white,  male,  aged  fifty-five  years, 
by  occupation  a  carpenter,  died  Mar.  8,  18,83,  at  the  town  of  Pleas- 
ant Prairie,  Kenosha  County,  Wisconsin,  of  Bright' s  disease  of 
the  kidneys,  and  was  buried  in  the  "German  Roman  Catholic  Ceme- 
tery." 

That  said  deceased  was  born  Mar.  8,  1828. 

That  the  name  of  the  father  of  said  deceased  was  Henry  Wil- 
liams, and  of  his  mother  Jane  (Flynn)  Williams,  and  that  the  name 
of  said  deceased's  wife  is  Mary  (Jones)  Williams. "^^ 

§  564.  Continued — Probate  of  Death.  Before  administration  is 
granted  upon  the  estate  of  any  person  alleged  to  have  died  in- 
testate, satisfactory  proof  is  always  required  to  be  made  before  the 
probate  court  to  whom  application  for  that  purpose  is  made,  that 
the  person  in  whose  estate  letters  of  administration  are  requested, 
is  dead,  and  died  intestate.  This  is  accomplished  by  an  affidavit 
or  verified  petition,  made  by  the  person  applying  for  such  letters, 
or  by  some  other  credible  person,  and  forms  the  basis  of  all  sub- 
sequent proceedings  in  such  court.     Oral  testimony  of  the  fact  of 

73  This  matter  is  local  and  statu-  in  some  measure,  will  serve  as  an 
tory.  The  statement  above  made  is  aid  in  securing  missing  links  in  a 
compiled  from  the  code  of  the  State  chain  of  pedigree, 
of  Wisconsin.  As  affecting  real  74  State  v.  Wallace,  9  N.  H.  515; 
estate  by  descent,  it  is  a  most  wise  Milf ord  v.  Worcester,  7  Mass.  48 ; 
and  salutary  measure  and  one  that  State  v.  Potter,  52  Vt.  33 ;  Niles  v. 
should  find  immediate  adoption  in  all  Sprague,  13  Iowa,  198. 
States  in  which  it  does  not  now  pre-  76  This  serves  to  identify  the  de- 
vail.  In  some  States  the  municipal  ceased  with  reasonable  certainty,  and 
authorities  are  required  to  keep  a  precludes  the  necessity  of  affidavits 
register  of  "vital  statistics,"   which,  or    declarations    of    identity. 


590  ABSTRACTS   OF    TITLE.  [§  565 

death  is  also  received  on  proof  of  will  or  heirship  and  in  such  cases 
a  judicial  ttudiug  of  death  is  entered  of  record. 

§  565.  Proof  of  Birth  and  Legitimacy.  Certificates  of  the  mar- 
riage of  the  parents  and  the  baptism  of  the  person  proposed  within 
a  reasonable  time  after  the  marriage,  are  admitted  in  England,  and 
it  would  seem  in  Canada,  as  full  and  ample  evidence  of  legitimacy, 
without  any  proof  of  the  identity  of  the  parties,'^  and  such  evi- 
dence in  a  contest  regarding  the  succession  would  also  be  received 
in  the  United  States,  while  for  many  purposes,  in  the  absence  of 
better  evidence,  general  reputation,''  proof  of  cohabitation,'^  ad- 
missions and  declarations,'^  would  be  competent.  Entries  in  a 
family  bible  are  also  admissible  to  prove  birth  when  primary  evi- 
dence can  not  be  obtained.***  An  abstract,  as  it  is  compiled  in  this 
country,  does  not  contain  evidence  of  this  character,  and  where  it 
is  desirable  to  obtain  information  relative  to  heirship,  and  no  decree 
has  been  made  in  any  matter  respecting  same,  and  no  system  of 
official  registration  of  births  and  marriages  exists,  an  inciuiry  in 
pais  must  be  made.  Where  official  returns  are  made  and  kept  pur- 
suant to  law,  such  returns,  or  the  record  thereof,  would  furnish 
prima  facie  evidence  of  the  desired  facts,*^  while  the  probate  of 
the  estate,  including  distribution,  assignment  of  dower,  etc.,  would 
also  be  evidence  of  the  same  character. 

Except  in  cases  of  contested  succession  the  question  of  marriage 

76  Taylor  on  Titles,  63;  Hubbaek  Tuttle,  4  N.  H.  371;  Kelly  v.  Mc- 
on  Sue.  65.  A  certificate  of  bap-  Guire,  15  Ark.  555;  Jackson  v.  Brow- 
tism  is  no  evidence  of  the  exact  age       ner,   18  Johns.    (N.  Y.)    37. 

of  a  party;  it  is  good  evidence  of  78  Clayton  v.  Wardell,  4  N.  Y.  230; 
his  legitimacy,  but  not  of  his  age:  State  v.  Armington,  25  Minn.  29. 
Cov.  Con.  Ev.  281.  And  an  entry  Proof  of  both  reputation  and  co- 
in a  baptismal  register  is  competent  habitation  are  sufficient  evidence  upon 
to  prove  only  the  fact  and  date  of  which  to  presume  marriage,  but  proof 
baptism :  Blackburn  v.  Crawford  's  of  either  alone  is  not  sufficient :  Corn- 
Lessee,  3  Wall.    (U.  S.)    175.  monwealth  v.  Stump,  53  Pa.  St.  132. 

77  Fenton  v.  Reed,  4  Johns,  52 ;  Keputatiou  is  generally  held  to  con- 
Brice's  Estate,  11  Phila.  (Pa.)  98;  sist  of  the  expressed  opinions  of  per- 
Harland    v.    Eastman,    107    111.    535.  sons   who    knew   the    parties. 

An    affidavit    by    some    person    who  79  Betsinger  v.  Chapman,  88  N.  Y. 

was   present   and   witnessed   the   mar-  487 ;    Proctor    v.    Bigelow,    38    Mich, 

riage    would    be    competent     (Brewer  282;  111.  Land  &  Loan  Co.  v.  Bonner, 

v.  State,  59  Ala.   101;   State  v.  Wil-  75   111.  315. 

liams,   20   Iowa   98),   or  by  the   cele-  80  Campbell  v.  Wilson,  33  Tex.  252; 

brant   (State  v.  Goodrich,  14  W.  Va.  Hunt  v.  Chosen  Friends,  64  Mich.  67. 

834),    or    by    some    member    of    the  81  State  v.  Potter,  52  Vt.  33 ;  Niles 

family  that  a   marriage   was  reputed  v.    Sprague,    13    Iowa    198. 
to    have    taken    place:      Waldron    v. 


§  565]  DESCENTS.  591 

does  not  become  very  material  in  the  examination  of  a  title.  All 
intendments  are  in  its  favor  and  very  slight  evidence  will  usually 
be  sufficient  to  sustain  the  claim  of  an  heir  where  nothing  appears 
to  oppose  it.  The  law  presumes  a  child  to  have  been  born  in  law- 
ful wedlock,  and  this  presumption  must  prevail  until  overcome  by 
clear  and  convincing  proof  adduced  by  those  alleging  illegitimacy.^^ 
If  the  estate  has  been  probated  nothing  more  than  the  proof  of 
heirship  taken  therein  will  be  required ;  if  there  has  been  no  pro- 
bate an  affidavit  of  pedigree  should  be  furnished.  Absolute  facts 
are  not  essential  to  such  an  affidavit  nor  is  it  necessary  that  the 
affiant  should  make  a  statement  from  his  own  knowledge.  Com- 
mon reputation,  living  together  of  the  parents,  and  other  cor- 
roborating circumstances  will  all  tend  to  prove  marriage.  At  com- 
mon law  no  special  form  or  solemnity  is  necessary  to  constitute  a 
valid  marriage  and  where  parties  enter  into  the  relation  by  mutual 
consent  the  legal  results  of  marriage  will  follow.  Such  marriages 
have  repeatedlj^  been  recognized  in  the  United  States  ^  and  the 
assent  may  and  will  be  presumed  from  the  actions  of  the  parties. 
Continuous  matrimonial  intercourse  for  a  number  of  years  will  fur- 
nish grounds  for  the  presumption  of  a  valid  marriage,'*  and  evi- 
dence of  a  legitimate  descent.®^  At  the  present  time  there  is  a 
strong  and  growing  tendency  against  the  validity  of  the  so-called 
common  law  marriage  and  in  some  States  such  unions  are  no 
longer  recognized.  Local  usage  must  determine  any  questions  of 
this  kind  that  maj^  arise. 

82  Orthwein  v.  Thomas,  127  lU.  such  subsequent  relations  have  all  the 
554,  21  N.  E.  430,  4  L.  R.  A.  434;  appearance  of  the  marriage  relation, 
Re  Pickings  Estate,  163  Pa.  14,  29  and  there  is  nothing  apparently  clan- 
Atl.    875,   25  L.   R.   A.   477.  destine,    and    no    divided    reputation, 

83  Port  V.  Port,  70  111.  486 ;  Meis-  and  the  parties  acknowledge  each 
ter  V.  Moore,  96  U.  S.  76 ;  Hutehins  other  on  all  occasions  and  under  all 
V.    Kinimell,    31    Mich.    126.  circumstances  as  man  and  wife  to  the 

84  The  rule  may  be  succinctly  stated  extent  that  married  persons  ordinarily 
as  follows:  Where  it  appears  that  do,  a  legal  presumption  of  marrLage 
the  intercourse  between  the  parties  is  raised.  Cross  v.  Cross,  55  Mich, 
was  originally  illicit,  there  being  no  287 ;  Williams  v.  Williams,  46  Wis. 
impediment  to  marriage,  it  will  be  464;  Harbeck  v.  Harbeck,  102  N.  Y. 
presumed  that  the  intercourse  con-  714;  Arnold  v.  Chesebrough,  46  Fed. 
tinned  to  be  illicit ;   and   where  their  Red.    700. 

subsequent     relations    appear    to    be  85  K.    P.    R.    R.    Co.    v.    Miller,    2 

clandestine,    and    are    kept    concealed  Cal.    442;    Askev;   v.    Dupree,    30   Ga. 

from  others  who  will  necessarily  dis-  173 ;   Duncan  v.  Duncan,   10  Ohio  St. 

cover  that  the  relation   is  illicit,   un-  181;   Dyer  v.   Brennock,   66   Mo.  391. 

less  made  to  believe  that  the  parties  But  see,  Robertson  v.  State,  42  Ala. 

are   married,   the   evidence   is   insuffi-  509 ;  Mangue  v.  Mangue,  1  Mass.  240 ; 

cient  to  prove  marriage.     But  where  In  re   Thalo)',   93    Pa.   St.    36. 


592  ABSTRACTS   OF    TITLE.  [§  566 

§  566.  Presumption  of  Legitimacy.  It  was  formerly  the  rule 
in  England,  as  also  in  tliis  country,  that  when  a  child  was  born 
in  wedlock  the  presumption  of  legitimacy  was  conclusive.  But 
recent  years  have  greatly  modified  the  old  rule  and  now,  while 
the  presumption  is  not  to  be  rebutted  by  circumstances  which 
only  create  doubt  and  suspicion,  it  may  yet  be  wholly  removed  by 
proper  and  suflficient  evidence  showing  that  the  husband  was  (1) 
incompetent;  (2)  entirely  absent,  so  as  to  have  no  intercourse 
or  communication  of  any  kind  with  the  mother;  (3)  entirely 
absent  at  the  period  during  which  the  child  must  in  the  course 
of  nature,  have  been  begotten;  or  (4)  only  present  under  such 
circumstances  as  afford  clear  and  satisfactory  proof  that  there 
was  no  sexual  intercourse.*^ 

§  567.  Validity  of  Descents.  Titles  depending  upon  descent 
are  viewed  by  our  English  brethren  with  disfavor  and  ranked 
amongst  the  poorest  that  can  be  offered,  or  the  weakest  that  can 
be  asserted.  Such  titles  are  always  to  be  viewed  with  jealousy, 
observe  their  leading  writers,  and  if  dependent  upon  several  suc- 
cessive descents  are  scarcely  marketable.*''  In  a  limited  sense  this 
may  also  be  true  of  title  by  descent  in  the  United  States,  and 
purchasers  would  be  justified  in  refusing  to  take  many  titles  that 
might  be  offered  by  parties  claiming  in  this  manner.  This  almost 
invariably  follows  in  cases  of  unprobated  estates,  for  no  title  can 
be  more  uncertain  and  insecure,  and  scarcely  any  length  of  time 
in  the  absence  of  other  evidence,  would  be  sufficient  to  furnish  a 
reasonable  presumption  of  death  and  the  exclusion  of  the  rights 
of  other  heirs  who  might  pos.sess  valid  claims  upon  the  prop- 
erty.** Proof  that  certain  persons  are  the  only  children  who  sur- 
vive their  father  does  not  establish  the  fact  that  they  are  the  only 
heirs,  as  he  may  have  grandchildren  by  deceased  children,*®  and 
hence  it  is  necessary,  in  some  instances,  that  additional  informa- 
tion to  that  furnished  by  the  proceedings  in  probate,  be  also  pro- 
cured to  fully  establish  an  asserted  right.  A  properly  taken  proof 
of  heirship  in  probate  should,  however,  show  the  fact  of  decease 
of  children  prior  to  the  death  of  the  intestate  and  whether  or 
not  .such  children  died  without  issue,  but  frequently  this  fact  is 

86  See,  Goss  v.  Froman,  89  Ky.  8»  A  deceased  person  is  always  pre- 
318,   12  S.  W.  387.                                         sumed    to    have    left    heirs:      Pile    v. 

87  Atkinson    on    Titles,    374;    Hub-       McBratney,    15   111.    314. 

back  on  Sue.    (Eng.)    71;    Taylor   on  89  Skinner    v.    Fulton,    39    111.    484. 

Titles    (Canada),    61. 


§  568]  DESCENTS.  593 

not  found.^"  The  statute  of  limitations  will  furnish  a  strong  re- 
enforcement  to  a  doubtful  title  by  descent,  and  serve  to  effectually 
settle  many  of  the  questions  that  otherwise  would  render  the  title 
undesirable. 

§568.  Abstract  of  Descents.  Under  the  English  system  of 
abstracting,  a  descent  is  shown  by  a  pedigree,  supported  by  cer- 
tificates of  marriage,  births  and  deaths,  inserted  in  the  order  of 
their  date.  If  the  certificates  can  not  be  procured,  which  from 
the  loss  or  imperfect  state  of  registers  or  other  circumstances  is 
sometimes  the  case,  substitution  is  made  of  entries  in  the  Royal 
College  of  Arms,  in  family  bibles  or  books,  inscriptions  on  tomb 
stones,  and  the  solemn  declarations  of  family  solicitors,  tenants, 
workmen,  and  parties  acquainted  with  circumstances  and  facts, 
as  well  as  such  evidence  of  the  seizin  of  the  different  parties, 
shown  by  the  pedigree  to  be  entitled,  as  can  be  adduced ;  for  which 
evidence  old  leases  of  the  property,  land  tax,  and  parochial  assess- 
ments, are  referred  to.®*  Pedigrees,  or  family  histories,  may  be 
used  to  a  very  limited  extent  in  the  eastern  States  and  are  some- 
times alluded  to  by  writers  on  conveyancing,  but  in  the  west  they 
are  practically  unknown,  while  authentic  information  of  the  facts 
to  which  a  pedigree  relates  is  usually  extremely  difficult  of  ascer- 
tainment, and  the  sources  as  mentioned  above  would  hardly  be 
considered  sufficiently  certain  by  the  average  attorney. 

Family  records,  when  shown  to  have  been  regularly  compiled, 
are  not  without  weight  in  the  United  States,  and  are  frequently 
resorted  to  for  proof  of  heirship  in  the  administration  of  estates 
and  trial  of  disputed  land  titles,  but  while  they,  with  other  evi- 
dence, will  be  received  by  courts  to  prove  pedigree  and  establish 
rights  of  succession,  they  do  not  constitute  such  evidence,  save 
as  they  appear  in  court  proceedings  by  way  of  recital,  as  is  re- 
quired in  compiling  an  abstract,  and  examiners  as  a  rule  do  not, 
and  as  a  matter  of  fact,  should  not,  attempt  to  introduce  them 
or  any  other  matter  strictlj^  in  pais.  A  judicial  determination 
in  an  action  brought  by  adverse  claimants,  or  in  a  proceeding 
in  rem  to  determine  the  rights  and  apportion  the  interests  of  the 
parties   before   the    court,   would   be   proper   record   evidence   of 


90  From  personal  inquiries  made  by  tcrs  of  administration,  and  that  in 
author  it  appears  that  in  a  majority  such  courts  it  is  not  customary  to 
of  the  probate  courts  of  the  State  of  make  any  judicial  findings  of  heir- 
Illinois  no  proof  of  heirship  is  re-  ship.  Probably  the  same  conditions 
quired  other  than  that  furnished  by  prevail  in  other  States, 
the  statements  of  the  petition  for  let-  91  Moore  on  Abst.  44. 
Warvelle  Abstracts — 38 


594  ABSTRACTS   OF    TITLE.  [§  568 

descent  and  rijjht  of  succession,  while  the  jiroeoedings  in  prohate 
are  evidence  of  the  same  nature.  These  matters  therefore,  must 
always  be  noted  and  appropriately  exhibited,  and  with  a  ver\' 
few  exceptions  will  furnish  sufficient  data,  and  be  sufficiently 
eojH'lusive  of  the  facts  of  death  and  heirship,  to  warrant  the  be- 
lief that  the  persons  so  found  to  be  the  heirs  of  the  decedent  are 
such  heirs  and  the  only  ones  entitled  to  participate  in  the  dis- 
tribution  or  share  in   the  succession. 

§  569.  Continued — Probate  Proceedings.  The  usual  and  ordi- 
nary method  of  showing  a  descent  in  the  United  States  is  by  an 
abstract  of  the  settlement  of  decedent's  estate.  This  should  dis- 
close the  jurisdiction  of  the  court,  appointment  of  administrator, 
proof  of  heirship,  and  adjudication.^'^  This  is  sufficiont  to  show 
the  descent,  but  in  order  that  the  title  of  the  heirs  may  not  be 
obscured  by  latent  defects  or  creditors'  liens,  the  inventor}',  pay- 
ment of  claims,  and  final  report  and  discharge  of  the  adminis- 
trator should  also  be  shown.  The  degree  of  detail  is  optional 
with  the  examiner,  provided  the  jurisdiction  be  made  to  appear 
and  an  apparent  regularity  is  shown  in  all  of  the  subsequent 
steps.  The  following  is  offered  as  a  specimen  of  a  very  simple 
settlement : 


In  Probate  Court,  Cook  County,  Ills. 

In  the  matter  of  the  estate  ^      ,,        ,r '       ^^^  .     , 

,  ^  !      Case  No.  2,000  rn  box  135. 

T  T     .    ^j,  I     Petition  of  Anna  Haskell  for  let- 

Julm  A.  Mason.  I  j-      -,    •   ■  ^     ^-        ^,   -,  L 

'  ters  of  administration,  pled  May  10, 

1883.     liecord  U,  pg.  12. 

Represents   tJiat  Julia  A.  Mason  died  intestate,  Aug.  2,  1882, 

leaving  propertij  and  effects  in  Cook  County,  Ills.,  as  follou's,  to 

wit:  [describe  the  real  estate]  and  leaving  her  surviving,^^  Anna 

92  These    latter   will    not    be    found  heirship-  of  the  peraon.s  named   (Rua- 

in    the   proceedinpa    of   some   probate  sell   t.    Jackson,    22    Wend.    (N.    Y.) 

courts.      But    where    a    special    proof  277),  but  is  not  conclusive,  nor  does 

of  heirship    is   required   to   be   made,  it  prove  that  the  persons  named  are 

followed  by  a  judicial  finding  of  heir-  the    only    heirs   entitled    to    share    in 

ship    these    matters    become    of    high  the  succession,  as  the   intestate  may 

importance    and     should     always    be  have  had   children  who   did   not  sur- 

shown.     Bee  the  recitals  in  the  form  vive  him,  but  who  in  turn  may  have 

given  in  this  section.  left  children  entitled  to  a  reprcsenta- 

98  This  fact,  if  properly  proved,  tion :  Skinner  v.  Fulton.  .39  111.  484. 
will    be    sufficient    to    establish    the 


§  570]  DESCENTS.  595 

Haskell  (wife  of  Charles  Haskell)  and  Walter  A.  Mason,  her  only 
heirs  at  law. 

Sworn  to  May  10,  1883. 

Letters  of  administration  issued  to  Anna  Haskell,  dated  May 
10,  1883. 

Bond  in  smn  of  $6,400.00  with  sureties,  filed  and  approved  May 
10,  1883. 

Warrant  to  appraisers  issued,  dated  May  10,  18^3. 

Proof  of  heirship  entered  May  10,  1883. 

The  court  finds  from  the  evidence  produced  in  open  court,  that 
Julia  A.  Mason  died  Aug.  2,  1882,^  leaving  her  surviving  Walter 
A.  Mason,  her  son,  and  Anna  Haskell  (wife  of  Charles  Haskell) 
her  daughter,  her  only  next  of  kin  and  heirs  at  law. 

Proof  of  puMication  and  posting  of  notices  for  adjudication  filed 
Jiine  1,  1883,  and  approved  July  16,  1883. 

Adjudication  ordered  July  16,  1883. 

Proceed  in  this  order  showing  succeeding  steps  in  much  the 
same  manner  as  an  abstract  of  a  devise.^^  This  would  include  the 
proof,  allowance  and  payment  of  claims,  and  the  final  order  of 
distribution  and  discharge  of  the  administrator. 

The  foregoing  will  be  all  that  is  necessary  in  a  majority  of  cases 
but  more  detail  is  now  being  shown  in  the  abstracts  of  descent  than 
was  formerh^  the  practice.  Thus,  a  synopsis  of  the  evidence  offered 
on  the  hearing  of  heirship  is  frequently  inserted  as  well  as  the 
findings  of  the  court.  This  will  be  the  case  where  the  deceased 
was  married  more  than  once  and  it  becomes  important  to  show 
whether  the  spouses  died  prior  to  the  death  of  the  intestate ;  whether 
they  were  divorced,  or  whether  they  survived  him.  Many  ex- 
aminers show  the  ages  of  the  heirs. 

Where  claims  have  been  contested  and  disallowed  if  appeals 
have  been  prayed  these  facts,  together  with  the  order  entered  and 
the  date  of  filing  and  appi'oval  of  appeal  bond,  should  be  shown. 

§  570.  Settlement  Without  Administration.  It  is  competent  for 
all  the  heirs  to  an  estate,  if  of  age,  to  settle  and  pay  the  debts 

94  The  proof  of  death  is  the  foun-  111.  517,  for  a  learned  and  instructive 

dation  of  title  by  descent  or  through  opinion  on   grants  of  administration, 

the  administrator;   this  must  he  con-  made  on  presumptions  and  insufficient 

elusive,  and,  while  the  evidence  need  proof. 

not    be    shown,    the    fact    should    be  86  See   §  417   for  abstract  of  a   de- 
made   to   appear  as   strongly   as  pos-  vise, 
sible.      See    Thomas    v.    People,    107 


596  ABSTRACTS    OF    TITLK.  [§  570 

of  tlie  estate,  and  to  make  partition  oT  tlie  i)i-operty  among  them- 
selves, without  any  adniinistratioii ;  and  neither  creditors  nor 
debtors  of  the  estate  have  a  right  to  eoniphiin.*^  If,  in  pursuing 
this  course,  they  sell  portions  of  the  property  and  make  proper 
application  of  the  proceeds  to  the  payment  of  the  debts,  their  acts 
are  entitled  to  full  faith  and  credit,  as  though  they  acted  in  the 
capacity-  of  administrators  or  executors.^' 

Where  deeds  are  found  upon  the  records  which  purport  to  have 
been  executed  by  the  heirs  at  law  of  a  party  in  whom  title  is  shown 
to  have  been  vested,  and  no  administration  appears  to  have  been 
had  upon  the  estate  of  such  alleged  ancestor,  it  is  well  to  call  at- 
tention to  such  latter  fact  by  a  brief  note  immediately  following 
the  heir's  deed.    Thus: 

Note. — We  find  no  evidence  of  administration  in  Cook  County, 
Illinois,  on  the  estate  of  William  Black,  nor  probate  of  his 
will,  if  any. 

It  will  frequently  happen  that  the  ancestor  was  a  non-resident 
and  tliat  administration  was  had  upon  his  estate  at  the  place 
of  his  late  domicile.  AVhen  such  is  the  fact  an  exemplification 
of  such  proceedings  should  be  procured  and  filed  in  the  registry 
of  deeds  of  the  county  where  the  land  in  question  is  situate.  This 
will  be  sutficient  to  show  descent,  provided  a  finding  of  heirship 
appears,  but  in  order  to  make  an  indefeasible  title  an  ancillary' 
administration  should  be  had.  The  chief  object  of  such  ancillary 
administration  is  to  bar  the  claims  of  creditors,  and  if  the  prop- 
erty is  valuable  this  step  should  always  be  taken. 

§  571.  Escheat.  The  latest  taker,  under  the  statute  of  descents, 
is  the  State.  But  the  State  is  not  to  be  deemed  an  heir  within 
the  ordinary  meaning  of  the  term,  and  takes,  not  as  an  heir,  but 
rather  because  there  are  no  heirs.^*  In  such  case,  however,  while 
the  title  would  vest  immediately  in  the  State,  yet,  as  the  pre- 
sumption of  law  is  that  a  decedent  leaves  heirs,  no  valid  disposi- 
tion of  the  land  could  be  effected  until  this  presumption  had  been 
rebutted  and  the  escheat  declared  in  the  manner  prescribed  by  the 

96  Taylor    v.   Phillips,   30   Vt.    238;  97  Morris    v.   Halbert,    36    Tex.    19. 

Babbitt    v.    Bowen,   33    Vt.   437;    and  98  State   v.   Ames,   123   La.   Ann.   09. 

see  Brashear  v.  Connor,  29  La.  Ann. 
374. 


§  571]  DESCENTS.  597 

statute.*®  The  right  of  the  State  is  established  by  a  formal  pro- 
ceeding generally  called  "inquest  of  office,"  and  where  title  is 
deduced  through  escheat  this  proceeding  must  be  shown.  Instances 
of  title  derived  in  this  manner  are,  however,  very  rare. 

99  Wilbur      v.      Tobey,      16      Pick.  cord,    but   most   of   the   disagreement 

(Mass.)     177;     Re    Miner,    143    Cal.  grows    out    of    the    laws    respecting 

194,    76    Pac.    968;    Be    Malone,    21  aliens.      As   where    the   claimants  are 

S.  C.  435;  Wallahan  v.  Ingersoll,  117  aliens  but  under  the  law  of  the  State 

111.  123,  7  N.  E.  519.     Upon  this  sub-  are   without   inheritable   blood, 
ject    the    authorities    are    not    in    ac- 


CHAPTER  XXXI. 

ADVERSE   TITLE. 

§  572.  Adverse    titles,    generally    con-  §  580.  Tacking. 

sidered.  S  581.  Possession   as    notice. 

§  573.  Adverse   conveyances.  §  582.  Who  may  acquire  adverse  title. 

§  574.  The   character  of  adverse   pos-  S  583.  Keniainder -men. 

session.  5  584.  Reversioners. 

§  575.  Color   of   title.  §  5S5.  Tenants   in   conunon. 

§  576.  Adverse  possession  under  color  8  586.  Persons  under  disability. 

of  title.  S  587.  Married  women. 

§  577.  Constructive   possession.  §  588.  Adverse   rights   as   against   the 

§  578.  Adverse   possession   from    user.  State. 

§  579.  Naked       possession       without  §  589.  Effect    of    adverse    possession. 

claim.  §  590.  Proof   to   support   title. 

§  572.  Adverse  Titles,  Generally  Considered.    In  examinations 

of  title  it  is  not  uncommon  to  find  two,  or  even  three,  conflicting 
claims  of  title  evidenced  by  deeds  or  other  matter  of  record,  while 
inquiries  in  pais  may  further  disclose  claims  of  title  and  owner- 
ship founded  upon  actual  occupation  and  possession,  under  claims 
of  right  resting  upon  unrecorded  deeds,  undisclosed  descents,  or 
prescriptive  user.  In  some  cases  the  adverse  titles  have  a  com- 
mon origin  and  all  flow  from  the  same  source ;  in  others  they 
originate  through  tax  sales,  or  by  reason  of  independent  convey- 
ances from  individuals.  Sometimes  the  adverse  titles  are  only 
seeming,  being  the  results  of  mistakes  in  the  draughting  of  instru- 
ments of  conveyance.  The  (luestions  raised  by  these  conflicting 
claims  are  numerous  and  sometimes  difficult  of  solution,  and  are 
among  the  most  perplexing  incidents  upon  which  counsel  are 
obliged   to  pass. 

§  573.  Adverse  Conveyances.  Under  this  head  are  grouped 
all  conveyances  emanating  from  independent  sources  and  not  con- 
nected with  original  grantor  or  forming  a  part  of  the  regular 
course  of  title.  These  conveyances  may  consist  of  tax  deeds  and 
resulting  conveyances  which  have  not  been  merged  into  the  com- 
mon ownership ;  an  assertion  of  title  by  one  having  no  record  evi- 
dence; and  deeds  which  by  erroneous  descriptions  do  not  convey 
the  property  intended,  but  cover  other  and  entirely  different  par- 
cels.    It  is  the  practice  of  examiners  to  arrange  these  deeds  as  an 

598 


§  573]  ADVERSE   TITLE.  599 

appendix  to  the  chain,  setting  them  out  under  the  classified  head, 
"adverse  conveyances,"  and  prefixing  to  them  the  statement,  "we 
also  find." 

Where  an  adverse  title  appears  of  record,  followed  by  mesne 
conveyances,  and  eventually  merging  into  the  original  title,  they 
constitute  part  of  the  chain  and  are  shown  in  the  regular  course. 
In  cases  of  this  kind  the  better  way  is  to  trace  the  title  from  the 
original  grantor  to  the  person  in  whom  a  perfect  and  unembar- 
rassed title  is  found;  here  stop  and  separate  what  follows  by  a 
broad  dash,  or,  if  desired,  a  prefatory  note;  then  show  the  tax 
deed  or  other  initial  adverse  conveyance  and  the  conveyances  re- 
sulting therefrom,  until  title  is  again  found  in  the  person  pro- 
posed. Now  separate  the  succeeding  matter  as  before,  and  the 
next  deed  will  commence  a  reunited  and  perfect  chain.  Isolated 
adverse  conveyances,  as  has  been  stated,  are  frequently  the  result 
of  error,  and  are  often  followed  by  curative  deeds  which  demon- 
strate same.  When  the  examiner  can  supply  the  necessary  infor- 
mation an  explanatory  note  should  follow  the  adverse  deed,  thus: 

Note. — We  find  recorded  in  Book  500,  page  260,  a  deed  between 
the  same  parties,  and  hearing  same  date  as  the  foregoing, 
conveying  property  in  the  northeast  quarter  of  Sec.  10^  T. 
2  N.,  R.  23  E.,  and  wherein  it  is  recited  that  said  deed  is 
given  to  correct  an  error  in  the  description  of  land  con- 
veyed by  deed  recorded  in  Book  490,  page  359  (shown  as 
No.  25  of  this  examination;  or,  shown  above.) 

The  foregoing  suggestion  is  considered  the  better  way  to  treat 
adverse  conveyances,  particularly  when  it  can  not  be  demon- 
strated that  the  adverse  conveyance  is  the  result  of  error  and 
not  the  assertion  of  an  independent  title ;  yet  examiners  of  un- 
doubted standing  and  ability  have  frequently  deemed  an  explana- 
tory note,  without  any  exhibition  of  the  adverse  deed,  sufficient 
for  the  purposes  of  the  abstract.  Should  the  later  method  be  con- 
sidered desirable,  a  statement  similar  to  the  following  may  be 
made : 

Adverse  Conveyances. 


In  Book  185,  page  537,  is  recorded  a  deed^  from  John  TI.  Fellows 
and  wife  to  Lorenzo  Dow,  purporting  to  convey  land  described 
<zs:    Beginning  at  the  southeast  corner  south  of  the  Indian 


600  ABSTRACTS   OF    TITLE.  [§  573 

Boutidarif  Line  of  southeast  quarter  of  Section  S'l,  Town  40, 
Range  /V;  thence  north  on  east  line  of  said  quarter  section 
iO  rods;  thence  west  160  rods;  thence  south  40  rods;  thence 
east  160  rods,  containing  40  acres;  and  in  Book  49  of  Mort- 
gages, page  519,  is  recorded  a  mortgage  from  said  Lorenzo 
Dow  to  James  I'arton,  covering  same  premises;  said  mortgage 
is  released  on  margin  of  record  (as  appears  by  our  indices). 
Fellows  owned  land  in  Section  3:'),  Town  4t,  Range  13,  and  we 
assume  that  said  deeds  hij  Fellows  and  Dow  were  intended  to 
convey  land  there  and  not  in  Section  35,  Town  40,  Range  13^ 
where  he  had  no  interest  whatever. 

The  foregoing  example  is  given  to  show  tlie  methods  that  can 
be  and  sometimes  are  employed,  rather  than  as  a  precedent  to  be 
followed,  for,  although  the  conveyances  are  sufifieiently  identified 
to  furnish  actual  notice  of  their  character  and  import  to  all  per- 
sons perusing  the  abstract,  and  possibly  sufficient  explanation  is 
given  to  warrant,  the  assumption  of  the  examiner,  and,  in  the 
instance  under  consideration,  the  examiner  has  sufficiently  dis- 
charged his  duty  to  relieve  himself  of  liability,  yet  the  practice 
of  showing  positive  transactions  by  notes,  and  of  making  assump- 
tions without  expressed  authority,  is  dangerous  and  often  mislead- 
ing, and  calculated  to  involve  the  examiner  in  serious  complica- 
tions. Any  and  every  conveyance,  incumbrance,  lien  or  charge 
which  directly  or  by  just  implication  affects,  impairs  or  clouds  the 
title,  if  a  matter  of  record,  and  within  the  dates  comprising  the 
period  of  the  search,  should  be  shown  affirmatively  and  without  ex- 
pression of  opinion  as  regards  the  legal  effect  of  the  instruments,  or 
the  real  or  supposed  intention  of  the  parties,  and  if  the  examiner  is 
also  the  counsel,  let  the  abstract  and  the  opinion  be  separate  and 
distinct  papers. 

Where  an  isolated  adverse  deed  is  found,  and  there  is  nothing 
in  the  record  by  which  its  character  can  be  determined,  after 
showing  the  deed  it  is  well  to  add  some  such  note  as  the  follow- 


XoTE. — We  find  on-  record  no  conveyance  to  Robert  Smith  of  Lot 
10  in  Block  12,  of  the  subdivision  described  in  the  fore- 
going deed. 

Frequently,  where  lands  are  described  by  metes  and  bounds, 
deeds  will  be  found  which,  by  reason  of  erroneous  computation 
of  course  and  distance,  encroach  upon  other  lands  adjoining.     In 


§  574]  ADVERSE  TITLE.  601 

a  proper  sense  these  are  adverse  conveyances  and  should  be  shown. 
Where  deeds  of  this  character  are  found  they  should  be  set  out 
in  full  with  a  supplementary  note  by  the  examiner.  In  case 
there  is  nothing  in  the  record  to  suggest  error  on  the  part  of  the 
draughtsman  the  note  should  be  sufficiently  explicit  to  show  the 
encroachment.  This  will  be  of  much  assistance  to  counsel  in 
passing  the  title. 

The  following  is  offered  as  a  suggestion  in  treating  a  matter  of 
this  kind: 

Note. — The  map  of  Brown's  Subdivision,  as  recorded  in  Book  5 
of  Plats,  page  110,  shoivs  the  West  line  of  Block  3  to  be 
825.46  feet  West  of  the  East  line  of  said  subdivision.  The 
East  line  of  the  tract  described  in  the  foregoing  deed,  being 
12.41  chains  (equal  to  819.06  feet)  West  of  the  East  line 
of  said  subdivision,  tvould  appear  to  cover  the  West  6.40 
feet  of  Lots  6  and  7  in  said  Block  3. 

This  would  be  sufficient  to  fully  appraise  any  person  perusing 
the  abstract  of  the  apparent  encroachment  and  enable  them  to 
make  proper  requisitions  for  correction, 

§  574.  Adverse  Possession.  An  adverse  title  need  not  depend 
on  documentary  evidence,  but  may  rest  wholl}-  on  occupation,  or 
on  occupation  coupled  with  other  circumstances.  This,  of  course, 
the  abstract  will  not  show  and  the  facts  which  constitute  such 
title  are  ascertained  by  inquiries  in  pais. 

It  is  a  well  established  rule  that  a  possession,  to  be  adverse,  must 
be  so  open,  notorious  and  important  as  to  give  notice  to  par- 
ties interested  that  a  claim  of  right  is  intended  thereby;  that  the 
right  of  the  true  owner  is  invaded  intentionally,  and  with  a  pur- 
pose to  assert  a  claim  of  title  adversely  to  his;  and  to  furnish  the 
basis  of  a  substantial  title,  must  extend  in  unbroken  continuity 
over  the  period  prescribed  by  the  statute  of  limitations.*  This 
element  of  peaceful  continuity  is  perhaps  more  distinctly  mate- 
rial  in   conferring  title   by   adverse   possesvsion   than   any   other,* 

1  Carrol    v.    Gillien,    33    Ga.    539;  2  Tyler    Adv.    Enj.    907;    Groft    v. 

Beatty  v.  Mason,  30  Md.  409;  Dixon  Weekland,   34   Pa.    308;    Williams   v. 

V.   Cook,   47   Miss.   220;    Laramore   v.  Wallace,    78    N.    C.    354;    Shields    v. 

Minish,  43  Ga.  282 ;  Bowman  v.  Lee,  Roberts,  64  Ga.  370 ;  Renter  v.  Stuck- 

48  Mo.  335;   Calhoun  v.  Cook,  9  Pa.  art,  181  111.  529,  54  N.  E.  1014.    Pos- 

St.  226;   Cahill  v.  Palmer,  45  N.  Y.  session   of   land   once   established   by 

484;  Booth  v.  Small,  23  Towa  177.  material    acts    of    visible,    notorious 


602  ABSTRACTS   OF    TITLE.  [§  574 

and  is  a  consideration  of  primary  importance  in  all  examinations. 
A  statntory  distinction  is  made  in  some  States  between  a  claim 
of  title  founded  upon  some  written  instrument  or  judgment,  and 
an  actual,  continued  occupation  under  claim  of  title,  exclusive 
of  any  other  right,  but  not  founded  upon  any  written  instrument, 
judgment  or  decree ;  and  the  period  of  occupancy  in  the  latter 
case  must  be  continued  much  longer  than  in  the  former.  Thus, 
in  the  first  instance,  the  title  may  become  perfect  and  indefeasible 
at  the  end  of  ten  years,^  while  in  the  latter  the  period  of  legal 
memory  must  have  run  to  warrant  the  presumption  of  an  original 
valid  entry,  and  the  loss  or  destruction  of  the  muniments  that 
establish  the  occupant's  right  to  the  soil.  The  character  of  the 
possession,  too,  may  be  vastly  different  under  the  two  claims ;  as, 
in  the  first  instance,  a  partial  occupancy  only  is  required,  such 
partial  occupancy  drawing  to  it  constructively  the  possession  of 
all  of  the  land  mentioned  in  the  instrument  under  which  the  claim 
is  made,  while  in  the  latter  the  adverse  holding  extends  only  to 
so  much  of  the  land  as  may  have  been  actually  occupied.*  But  in 
either  event,  to  constitute  a  bar  to  the  assertion  of  the  legal  title, 
the  possession  must  be  hostile,^  and  not  a  mere  trespass,^  and 
must  also  be  visible,'  continuous,^  notorious,®  definite,^**  and  in- 
consistent with  the  claim  of  others,^^  while  the  claim  of  right 
accompanying  such  possession  must  not  have  originated  in  fraud.^* 

ownership  must  be  presumed  to  con-  pants  in  the  same  manner  that  lands 

tinue    until    open,    notorious,   adverse  similarly  situated  are  used, 
possession    be    proved    to    have    been  6  Tumey    v.    Chamberlain,    15    111. 

taken  by  another:     Clements  v.  Lam-  271,-    Thompson    v.    Felton,    54    Cal. 

kin,   34   Ark.   598.  547;   Heller  v.  Cohen,  154  N.  Y.  299, 

3  Limitation     periods     are     wholly  48  N.  E.  527. 

statutory.      The   text   states  the   gen-  6  Humbert  v.  Trinity  Ch.,  24  Wend, 

eral  rule  but  in  some  States  a  shorter  587 ;  Cahill  v.  Palmer,  45  N.  Y.  479. 

period    is   prescribed.      Thus,   in   lUi-  7  Irving    v.    Brownell,    11    111.    402. 

nois   possession    under   color    of   title  8  Jackson    v.    Bemer,    48    111.    203. 

with  payment  of  taxes  for  seven  years  9  MeClellan  v.  Kellogg,  17  111.  498; 

will     create     an     estoppel     available  Dixon  v.   Cook,   47   Miss.   220. 

against    all   persons    not    under    disa-  10  Fugate   v.    Pierce,    49    Mo.    441; 

bility.  Grube  v.  Wells,  34  Iowa,  148. 

4  What  acts  are  sufficient  to  con-  11  Ambrose  v.  Ealey,  58  111.  506 ; 
stitute  possession  are  matters  of  local  Sparrow  v.  Hovey,  44  Mich.  63 ; 
statutory  regulation,  but,  aa  a  rule,  Mauldin  v.  Cox,  67  Cal.  387,  7  Pac. 
there    must    be    either   cultivation    or  804. 

improvement;    protection    by    a    sub-  12  Moody    v.    Moody,    16    Hun    (N. 

stantial  enclosure;   and   a  use  of  the  Y.),    189;    Laramore    v.    Minish,    43 

premises,    if    not    enclosed,    for    the  Ga.  282;   Beaslcy  v.  Howell,  117  Ala. 

supply  of  fuel,  or  husbandry,  or  the  499,  22  So.  989;  Roberts  v.  Richards, 

ordinary    use    thereof    by    the    occu-  84    Me.    1,    24    Atl.    425;     Horn    v. 


§  575]  ADVERSE   TITLE.  603 

These  are  the  universally  recognized  elements  that  must  enter  into 
every  adverse  holding,  and  unless  they  are  present  the  settled 
principles  of  law  require  us  to  consider  the  true  owner  as  con- 
structively in  possession  of  the  land  to  which  he  holds  the  record 
title." 

A  clandestine  entry  or  possession  w^ill  never  serve  to  set  the 
statute  in  motion,  for  in  order  to  bar  the  true  owner  from  assert- 
ing his  title,  he  must  have  actual  or  constructive  notice  of  the 
instrument  under  which  the  adverse  claimant  enters,  or  knowledge, 
or  the  means  of  knowledge  of  such  occupation  and  claim  of  right," 
and  the  entry  must  be  made  and  the  possession  continued  under 
such  circumstances  as  to  enable  such,  true  owner,  by  the  use  of 
reasonable  diligence  to  ascertain  the  fact  of  entry  and  the  right 
and  claim  of  the  party  making  it.^^ 

Any  substantial  interruption  of  an  adverse  possession,  before 
the  lapse  of  the  period  required  to  constitute  the  statutory  bar, 
will  have  the  effect  of  restoring  the  seizin  of  the  rightful  owner 
of  the  land,  and  in  order  to  set  the  statute  in  motion  a  new 
entry  and  disseizin  will  be  necessar^^^^  It  seems  also,  that  the 
running  of  the  statute  may  be  interrupted  if  the  possession  ceases 
to  be  adverse,  notwithstanding  a  possession  in  fact  may  still  con- 
tinue.^' 

§  575.  Color  of  Title.  It  is  a  general  rule  that  where  one 
enters  upon  land  under  a  recorded  deed,  his  entry  and  claim  must 
be  referred  to  that  deed  and  measured  by  it.^*  Such  deed,  though 
void  in  fact,  gives  a  "colorable  title "^*  to  the  purchaser,  and 

Metzger,  234  111.  240,  84  N.  E.  893.  Doe    v.    Thompson,    5    Cow.    (N.    Y.) 

The  question  whether  one  who  holds  371. 

by  color  of  title  holds  in  good  faith  14  Fugate  v.  Pierce,  49  Mo.  441 ; 
or  bad,  depends  upon  the  purpose  Crispen  v.  Hannavan,  50  Mo.  536 ; 
with  which  he  acquired  the  title  re-  Thompson  v.  Pioche,  44  Cal.  508 ; 
lied  on,  and  the  reliance  placed  upon  Nowlin  v.  Reynolds,  25  Gratt.  (Va.) 
it.  If  the  holder  received  it,  know-  137;  Ford  v.  Wilson,  35  Miss.  504. 
ing  it  to  be  worthless,  or  in  fraud  16  Soule  v.  Barlow,  49  Vt.  329 ; 
of  the  owner 's  rights,  it  cannot  be  Brown  v.  Cockerell,  33  Ala.  151 ;  Cos- 
said  to  be  held  in  good  faith.  Still,  tello  v.  Edson,  44  Minn.  135,  46  N. 
many   things    that   may   be    sufficient  W.  299. 

to   destroy   the   presumption   of   good  16  Rings  v.  Woodruff,  43  Ark.  469 ; 

faith   may   be   insufficient   to   prevent  Costello   v.   Edson,   44  Minn.   135,   46 

the    deed    from    being   color  of   title.  N.   W.    299. 

See    Hardin    v.    Gouverneur,    69    111.  17  Stewart  v.  Stewart,  83  Wis.  364. 

140;    Hall   v.   Mooring,   27    La.    Ann.  18  Stevens  v.  Brooks,  24  Wis.  326; 

596.  Crary  v.  Goodman,   22  N.  W.   170. 
13  Bliss  v.  Johnson,  94  N.  Y.   235;  19  Edgerton   v.    Bird,   6   Wis.    527; 


604  ABSTRACTS   OF   TITLE.  [§  575 

where  it  professes  to  eonvey  the  entire  estate  a  claim  and  occu- 
pation undor  it  creates  an  adverse  possession  as  against  all  the 
world. 2°  What  amounts  to  a  color  of  title,  is  still  an  open  and 
unsettled  question,  though  numerous  decisions  defining:  its  char- 
acter exist  in  all  the  States  as  well  as  in  the  federal  courts,  and 
notwithstandin«r  that  in  a  few  instances  it  has  been  held  that 
documentary  evidence  is  not  re(|uired  to  support  a  claim  under 
color  of  title,^^  the  weigrht  of  authority  indicates  that  a  written 
instrument  is  necessary,  so  far  good  in  appearance  as  to  be  con- 
sistent with  the  idea  of  good  faith,  and  purporting  on  its  face 
to  convey  a  title. ^2  The  definitions  in  the  books,  though  widely 
divergent  in  many  particulars,  j-et  agree  in  the  main  on  these 
points. 

A  claim  of  heirship  has  been  held  to  come  within  the  term, 
the  supposed  inheritance  forming  the  "color,"  for  says  Gibson, 
J.,  "one  entering  by  a  title  depending  on  a  void  deed,  would 
certainly  be  in  by  color  of  title,  and  it  would  be  strange  if  an- 
other, entering  under  an  erroneous  belief  that  he  is  the  legiti- 
mate heir  of  the  person  last  seized  should  be  deemed  other- 
wise."^' A  confusion,  however,  seems  to  exist,  arising  from 
the  interchangeable  use  of  the  terms  "color"  and  "claim"  of 
title,  which,  as  a  matter  of  fact,  may,  and  do,  exist  separate  and 
independent  of  each  other.  To  constitute  the  former,  there  must, 
as  a  rule,  be  a  paper  title,  wbile  the  latter  may  exist  wholly  by 
parol.'*  Possession  under  a  claim  of  title,  without  a  deed  or 
other  written  instrument,  limits  the  person  .so  asserting  his  claim, 
to  his  actual  enclosure  or  occupancy,'^  but  when  founded  upon  a 
claim  and  color  of  title,  a  constructive  po.ssession  of  the  entire 
tract  will  follow  the  actual  occupancy  of  any  portion,'*  provided 
the  deed  or  other  matter  be  of  record.'' 

Brooks  V.  Bruyn,  35   111.   394;   Lind-  420;    Tcahout    v.    Daniels,    .38    Iowa, 

say    V.    Fry,    25    Wis.    460;    Beverly  158. 

V.    Brooke,   9    Ga.    440;    Hamilton    v.  24  Hamilton    v.    Wright,    30    Iowa, 

BoKges«<    6.1   Mo    233.  ^86;  Clagett  v.  Conlce,  16  Iowa,  487. 

20  Hail  V.  Law,  102  U.  S.  461;  ^^  ^'H^  ^'-  Hubbard,  21  III.  328. 
.Bell  V.  Longworth,  6  Ind.  273;  Water  ^^  brooks    v.    Bruyn,    18    111.    539; 

„  „        w  *  oofi  Tu    rrro  Scott  V.   Elkins,  83  N.   C.  424;   Cole 

man  Hall  v.  Waterman,  220  111.  569,  '  \  .,,, 

77    N    F     14"  ^^^   ^'    S»^^"^^S'    ^^    HI.    577;    Little 

.,   '      '        "^   ,     ^ ^.  .o,  V.    Megquier,    2    Me.    176;    Wpbb    v. 

21  Cooper   v.   Ord,   60   Mo.  431.  _,.  ,      ^^        '       „^     __     ',    ^    .,   ^, 

^  '  ,,,     Richardson,   42   Vt.   465;    but    if  the 

22  Baker    v.    Swan,    32    Md.    355 ;       ^  '  .  ', 

true    owner   be    in   actual    possession 
Kruse  v.   Wilson,   79   111.   240;    Stark       ^^   ^^^   ^^^^    ^^   ^^^   j^^^^^   ^.^    ^^„. 

V.    Starr,    1    Sawyer,    20;    Gittens    v.  ,truetive    seizin    extends    to    aU    not 

Lowry,   15   Ga.   338.  j^    fact    occupied    by    the    intruder: 

28McCall  V.  Niely,  3  Watts  (Pa.)  Hunnicut  v.  Peyton,  102  U.  S.  333. 
72;    and  see  Cooper  v.   Ord,   60   Mo.  27  Tritt  v.   Roberts,   64   Ga.    156. 


§  577]  ADVERSE   TITLE.  605 

§  576.  Adverse  Possession  Under  Color  of  Title.  A  valid  title 
is  not  required  in  order  to  enable  a  party  to  rely  upon  adverse 
possession  under  the  statute  of  limitations,^*  nor  is  it  necessary 
that  he  should  trace  title  through  a  chain  to  any  source.''®  A  deed 
which  purports  to  convey  a  complete  title  will  be  sufficient  to  give 
color  of  title,  although  the  grantor  may.  in  fact,  have  only  the 
rights  of  a  mortgagee,^**  or  lessee ;  '^  or,  if  the  deed  was  issued  on 
an  erroneous  or  void  decree  ;^^  or,  in  pursuance  of  a  sale  under 
an  imperfectly  executed  trust ;  '*  and  generally,  when  followed 
by  a  continuous  and  uninterrupted  possession  for  the  entire  statu- 
tory period,  it  will  constitute  an  adverse  holding,  effective  for  all 
purposes,  however  groundless  the  supposed  title  may  be.^*  It  is 
essential,  however,  that  the  lands  claimed  be  fully  identified  or 
described  in  the  instrument,^^  for  mere  occupancy  of  land  in 
virtue  and  under  a  claim  of  a  grant  which  does  not  embrace  it, 
is  not  adverse  possession  sufficient  to  constitute  an  estoppel  or 
effect  a  transfer  of  title ,3^  and  the  claim  must  not  be  general,  but 
specific.''' 

§  577.  Constructive  Possession.  Where  title  is  asserted  ad- 
versely under  a  claim  of  right,  and  by  reason  of  occupancy  and 
possession,  it  is  a  rule  of  universal  application  that  the  extent  of 
the  claim  must  be  measured  l)y  the  instrument  under  which  the 
claim  is  made.^*  When  such  instrument  purports  to  convey  an 
estate  in  fee  in  specific  lands,  although  actual  occupancy  is  only 
had  of  a  portion  of  the  premises  described,  the  claimant  is  yet 

28  Close  V.  Samni,  27  Iowa,  503 ;  color  of  title  on  which  to  found  a 
•Jackson  v.  Woodruff,  1  Cow.  276;  title  by  adverse  possession.  Water- 
Elliott  V.  Pearle,  10  Pet.  412;  Ford  man  Hall  v.  Waterman,  220  111.  569, 
V.  Wilson,  35  Miss.  504;  Grant  v.  77  N.  E.  142,  4  L.  R.  A.  (N.  S.), 
Fowler,   39   N.   H.    104.  776. 

29Rawgon     v.     Fox,     55     111.     200.  36  Lane    v.    Gould,    10    Barb.    254; 

Compare    Hedges    v.    Paulin,    5    Biss.  Jackson    v.    Woodruff,    1    Cow.    276; 

177.  Fugate  v.  Pierce,  49  Mo.  441;  Grube 

80  Stevens  v.   Brooks,   24   Wis.   326.  v.    Wells,    34    Iowa,    148;    Brown    v. 

31  Sands  v.  Hughes,  53  N.   Y.  287.  Coble,   72  N.   C.   391. 

82  Huls    v.    Bunten,    47     111.    396 ;  36  Lavcrty  v.  Moore,  33  N.  Y.  658 ; 

Hinkley  v.   Green,  52  111.   223.  Parish    v.    Coon,    40    Cal.    33;    Grubc 

83Gebhard  v.  Sattler,  40  Iowa,  153.  v.    Wells,    34    Iowa,    148;    Wood    v. 

34  Ford    v.    Wilson,    35    Miss.    504;  Banks,   14   N.    H.    111. 
Grant  v.  Fowler,  39  N.  H.   104;   Ty-  37  Crary    v.    Goodman,    22    N.    Y. 

ler   Adv.   Enj.,   907;    Davis  v.   Easly,  170;    Hallas   v.    Bell,   53   Barb.   247; 

13  111.  192.     A  quit  claim  deed  which  Pepper  v.   O'Dowd,   39  Wis.   538. 
purports   to   convey   the   entire   inter-  38  Washburn    v.    Cutter,    17    Minn, 

est   in   a   parcel   of   land   is   sufficient  361. 


606  ABSTRACTS   OP    TITLE.  [§  577 

oonstriietively  in  possession  of  the  entire  tract ,^*  his  occupancy 
of  a  part  bcinfj  in  contemplation  of  law  the  occupancy  of  every 
portion,'**'  but  there  can  l)e  no  constructive  possession  without  the 
color  of  title  ^^  atl'ordcd  by  some  deed,  instrument  or  preceeding 
purporting  to  convey  the  wliole  and  defining  boundaries,  as  well 
as  actual  possession  of  a  part.*^  Nor  will  constructive  possession 
be  sufficient  to  confer  title  to  any  portion  of  the  tract  in  the  ad- 
verse seizin  of  another.*^ 

§  578.  Adverse  Possession  from  User.  An  actual  continued 
occupation  of  lands  under  a  claim  of  title  exclusive  of  any  other 
right,  although  not  founded  on  a  written  instrument,  judgment  or 
decree,  is  yet  sufificient,  if  extending  through  the  entire  statutory 
period,  to  confer  title  to  the  portion  so  actually  occupied.**  It 
is  immaterial  to  support  title  thus  claimed  whether  there  be  a 
deed  valid  in  form,  or  whether  there  be  no  deed,*^  and  the  party 
in  possession  may  even  know  that  his  title  is  groundless,*^  but 
there  must  be  a  claim  of  title;*"''  an  assertion  of  paramount 
right;*'  and  there  must  be  actual  occupancy  measured  by  a  dis- 
tinct, visible  and  marked  possession.*^  Permissive  user  can  never, 
by  any  lapse  of  time  and  even  though  continuous  and  exclusive, 
ripen  into  a  title  to  the  fee,  nor  when  the  original  entry  was  by 
consent  of  the  owner,  and  no  adverse  claim  of  ownership  has  been 
asserted.^®  A  question  of  this  kind  will  sometime  occur  in  the 
case  of  tenants  in  common  or  joint  tenants,  where  one  of  them 
has  been  in  the  exclusive  occupancy  of  the  land  for  a  long  period. 
The  general  rule  is,  that  the  possession  of  one  tenant  is  the  pos- 
session of  the  others  and  in  such  cases  there  can  be  no  adverse 

39  Constructive  possession  has  been  Sand.  Ch.  (N.  Y.)  0.3.3;  .Tackson  v. 
(lefincfl    to    be    a    possession    in    law,       Wheat,  18  Johns.  40. 

without    possession   in    fact:     Hodges  47  Humbert   v.    Trinity    Church,    24 

V.    Eddy,    38    Vt.    327;    Welboni    v.  Wend.    587;    Eannels   v.   Eannels,    52 

Anderson,    37    Miss.    155.  Mo.    108. 

40  Brooks  V.  Bruyn,  18  111.  539;  48  Howard  v.  Howard,  17  Barb. 
Crispen  v.   Hannavan,  50   Mo.  536.  285;  Jackson  v.  Johnson,  5  Cow.  74; 

41  Wells    V.    Jackson    Manuf .     Co.,  Bowman    v.    Lee,    48    Mo.    335. 

48   N.   H.   491.  49  Corning  v.   The   Troy,  etc.,   Fac- 

42  Fugate  V.   Pierce,  49  Mo.  441.  tory,  44  N.  Y.  577 ;  Fugate  v.  Pierce, 

43  Walsh  V.  Hill,  41  Cal.  571;  Jack-       49   Mo.   441. 

son    V.    Vemiylyea,    6   Cow.    (N.    Y.)  60  Indianapolis,    etc.,    R.    R.    Co.    v. 

677.  Ross,    47     Ind.    25;     Cooper    v.     Mc- 

44  Dills  V.  Hubbard,  21  111.  328;  Bride,  4  Houst.  (Del.)  461;  Bedell 
Doe  V.   Eslava,  11  Ala.   102.  v.    Shaw,    59    N.    Y.    46;    Hudson    v. 

46Rannpls  v.   Rannels,  52  Mo.   108.       Putney,    14    W.    Va.    561.      Compare 
46  Bogardus    v.    Trinity    Church,    4       Ford   v.   Holmes,   61    Ga.    419. 


§  580]  ADVERSE   TITLE.  607 

possession  unless  there  is  an  actual  ouster  or  notice  of  a  hostile 
claim  given  to  the  others.  A  presumption  of  a  grant  of  his  un- 
divided share  from  one  tenant  to  another  never  arises  from  mere 
lapse  of  time  and  silent  possession. ^^ 

§  579.  Naked  Possession  Without  Claim.  ' '  Squatters "  or  in- 
truders upon  lands  accjuire  no  rights  bj'  reason  of  their  possession, 
as  the  gist  of  every  adverse  holding  is,  that  it  is  accompanied  by 
a  claim  of  right,  and  a  mere  trespass  can  never  ripen  into  a  right, 
so  as  to  set  the  statute  in  motion,  no  matter  how  long  con- 
tinued ;  ^^  nor  will  occupation  by  mistake  or  ignorance  suffice  to 
constitute  an  adverse  holding,^^  although  upon  this  point  there 
is  much  confusion  in  the  authorities.  But  an  entry  by  one  with- 
out color  of  title,  or  claim  of  right,  may  subsequently  become  ad- 
verse by  his  acquiring  and  asserting  a  claim  of  title ;  and  the 
statute  will  begin  to  run  from  the  time  of  such  assertion.^* 

§  580.  Tacking.  When  several  adverse  claimants  unite  their 
several  possessions  into  one  continuous  term,  this  is  called  "tack- 
ing." Where  there  are  several  successive  adverse  claimants,  the 
last  one  may  tack  the  possession  of  his  predecessors  to  his  own, 
so  as  to  make  a  continuous  adverse  holding  for  the  statutory 
period,  provided  there  is  a  privity  of  possession  between  such 
occupants.^5  Such  privity  may  arise  from  a  parol  bargain  and 
sale  of  the  possession  of  the  land,  followed  by  delivery  thereof, 
as   well   as  by   a   formal   convej^ance   from   one   occupant   to  the 

61  Logan  v.  Ward,  58  W.  Va.  366,  Kenney,  64  Me.  138.  The  text  states 
52  S.  E.  398,  5  L.  K.  A.  (N.  S.)  the  generally  received  doctrine  but  the 
156;  Blackaby  v.  Blackaby,  185  111.  cases,  in  many  instances,  make  some 
94,  56  N.  E.  1053.  But  see,  Dobbins  fine  distinctions,  and  the  authorities 
V.  Dobbins,  141  N.  C.  210,  53  S.  E.  are  not  in  full  accord  with  respect  to 
870,  10  L.  R.  A.  (N.  S.)  185,  where  the  rights  acquired  by  one  Avho  en- 
an  apparently  contrary  rule  is  an-  closes  and  occupies  land  by  mistake, 
nounced.  See    Warvelle    on    Ejectment,    §  440, 

62  Thompson  v.  Pioche,  44  Cal.  508 ;  et  seq.  for  a  full  discussion  and  col- 
Nowlin  V.  Reynolds,  25  Gratt.    (Va.)  lected    cases. 

137.     Nor  can  the   successive  posses-  54  Hamilton    v.    Wright,    30    Iowa, 

sion    of   trespassers   be   connected    to  480. 

make  the  bar  of  the  statute:     Baker  56  Shuffleton    v.    Nelson,    2    Sawyer 

V.   Hale,  6   Baxter    (Tenn.)    46;    Jaa-  (C.   Ct.),  540;   Haynes  v.   Boardman, 

person  v.   Schamikow,   150   Fed.   571.  119  Mass.  414;  Alexander  v,  Stewart, 

53  Thomas    v.    Babb,    45    Mo.    384;  50   Vt.   87;    McNeeley   v.   Langan,   22 

Parish    v.    Coon,    40    Cal.    33;    Grube  Ohio  St.  37. 
v.  Wells,  34  Iowa,  148;   Dow  v.  Mc- 


608  ABSTRACTS   OF    TITLE.  [§  580 

other.^®  Ai'tual  possession  by  prior  occupants  claiming  title,  al- 
though liaviiig  no  color  of  title,  \vill  always  avail  a  subsequent 
occupant  under  color  of  title,  claiming  under  such  prior  occu- 
pants, in  making  out  a  possessory  title  in  himself."  The  element 
of  continuity  must  appear,  however,  and  several  successive  but 
unconnected  disseizins  or  adverse  possessions,  though  amounting 
in  the  aggregate  to  twenty  years,  or  such  other  period  as  the 
statute  may  prescribe,  can  not  be  tacked  together  to  make  a  con- 
tinuous possession.^* 

§  581.  Possession  as  Notice.     Possession,  while  it  may  not  be 

"nine  points  of  the  law,"  always  has  been,  and  will  doubtless  ever 
continue  to  be,  prima  facie  evidence  of  the  highest  estate  in  land, 
to  wit,  a  seizin  in  fee,^®  and  when  open,  notorious  and  visible,  it 
has  always  been  regarded  as  aft'ording  constructive  notice  to 
others  of  the  occupant's  title  and  equities.^®  For  this  reason, 
counsel,  in  framing  an  opinion  of  title,  should  always  direct  the 
attention  of  his  client  to  the  rights  of  the  pei'son  in  possession, 
if  any,  or  suggest  that  an  inquiry  in  pais  be  made  as  to  present 
occupancy. 

§  582.  Who  May  Acquire  Adverse  Title.  One  who  enters  into 
possession  of  land  in  subordination  to  the  title  of  another  is 
estopped  from  denying  that  title,  while  he  holds  actually  or  pre- 
sumptively under  it ;  this  is  a  fundamental  rule  of  universal  ob- 
servance.^^ Yet  a  trustee  may  disavow  and  disclaim  his  trust ;  ^* 
a  tenant  the  title  of  his  landlord,  after  the  expiration  or  surren- 
der of  his  lease ;  ^^  a  purchaser  the  title  of  his  vendor,  after  the 

66Shufflelton    v.    Nelson,    2    Sawyer  kins    v.    Swank,    43    Miss.    349;    Hop-, 

(C.   Ct.),   540;    Kruse   v.   Wilson,    79  pin  v.  Doty,  25  Wis.  573;   O'Rourke 

111.  233;   Weber  v.   Anderson,  73   111.  v.    O  Tonnor,   39   Cal.   442. 
439.  61  Wilson  v.  James,  79  N.  C.  349; 

67  Day  v.  Wilder,  47  Vt.  584.    This  Clarke  v.  Clarke,  51  Ala.  498 ;  Hatch 

has  been  held   to  be   the  case  of  one  v.    Bullock,   57   N.   H.   15. 
who    held    as    heir    of    one    who    held  62  Jamison   v.   Perry,  38   Iowa,   14; 

adversely  under  mere  claim  of  right:  Commonwealth  v.   Clark,   119  Ky.  85, 

Teabout    v.   Daniels,   38   Iowa,   158.  83   S.   W.    100. 

68Shuftleton    v.    Nelson,    2    Sawyer  63  Nellis  v.  Lathrop,  22  Wend.  (N. 

(C.   Ct.),    540;    Marsh   v.    Griffin,   53  Y.)   121;   Mattis  v.  Robinson,  1  Neb. 

Ga.    320;    Pegues    v.    Warley,    14    S.  5.     Or   by   rescinding   the    lease   and 

C.   180.  claiming  a  new  title:     Weichselbaum 

89  Gulf  R.  R.  Co.  V.  Owen,  8  Kan.  v.    Curlett,    20    Kan.    709;    as    where 

409.  the  tenant  purchased  the  property  at 

60  Redden    v.    Miller,    95    111.    336;  tax    sale. 
Pinney   v.   Fellows,   15  Vt.   525;   Per- 


§  583]  ADVERSE   TITLE.  609 

breach  of  his  contract  by  the  latter;  and  a  tenant  in  common,  the 
title  of  his  co-tenant;^  and  drive  the  respective  owners  and 
claimants  to  their  action  of  ejectment  within  the  period  of  the 
statute  of  limitations.  In  like  manner  one  who  has  possession  of 
land  under  an  agreement  to  purchase,  which  contemplates  a  con- 
tinuing right  of  possession  while  the  contract  is  being  performed, 
and  an  absolute  right  of  possession  by  virtue  of  its  performance, 
may,  on  performance,  deny  the  title  of  the  vendor ;  and  thereafter 
his  possession  will  be  adverse.^^ 

A  gi'antor  remaining  in  possession  would  seem  to  be  effectu- 
ally estopped  by  the  covenants  of  his  deed,  and  such  has  been 
held  to  be  the  law,^^  yet  in  a  number  of  instances  a  grantor  who 
conveys  by  quit-claim  deed  only,  by  remaining  in  possession  of 
the  property  and  asserting  a  hostile  claim,  has  been  permitted  to 
acquire  a  title  against  his  grantee  by  virtue  of  the  statute  of  limi- 
tations ;  ®'  while  some  courts  have  even  held  that  a  grantor  with 
warrant}'  may,  subsequent  to  the  delivery  of  his  grant,  originate 
an  adverse  possession,  and  is  not  estopped  from  asserting  the 
same  by  his  covenant  of  warranty.^*  In  any  event  the  possession 
of  the  vendor  cannot  be  ignored  even  though  he  may  have  con- 
veyed with  warranty,  and  where  he  continues  to  occupy  the 
premises  all  persons  acquiring  title  from  his  grantee  are  charge- 
able with  notice  of  the  claims  of  the  grantor  and  of  his  equitable 
rights.^® 

§583.  Remainder-men.  It  is  a  well  established  principle  that 
the  statutes  of  limitation  do  not  commence  to  run  until  the  right 
of  action  or  right  of  entrj''  accrues.  It  therefore  does  not  com- 
mence to  run  against  a  remainder-man  until  the  termination  of 
the  precedent  estate,'**  when  the  deed  creating  such  prior  estate 

64  St.    Peter's    Church    v.    Bragaw,  67  Dorland    v.    Magilton,    47     Cal. 

144   N.   C.    126,   56   S.   E.   688.      But  485. 

this    rule   does   not   apply   to   tenants  68  Sherman  v.  Kane,   86  N.   Y.  57. 

by   the  entirety.     AUes  v   Lyon,   216  69  White    v.    White,    89    111.    460; 

Pa.    604,    66    Atl.    81.  Ford   v.   Marshall,    107    111.    136. 

65Catlino  v.  Decker,  38  Conn.  262;  70  Christie  v.  Gage,  71  N.  Y.  189; 

Stark    V.    Starr,    1    Sawyer    (C.    Ct.),  Dugan     v.     Follett,     100     111.     581; 

15.     The  executed  contract  then  be-  Fogal    v.    Perro,    10    Bos.     (N.    Y.) 

comes    a    sale    and    not    merely    an  100 ;    Carpenter   v.    Denoon,   29    Ohio 

agreement  to  purchase:     Ridgeway  v.  St.  379;   Gernet  v.  Lynn,  31   Pa.  St. 

Holliday,   59    Mo.    444.  94. 

66  Van  Keuren  v.  R.  R.  Co.,  38 
N.  J.  L.  165;  Blake  v.  O'Neal,  63 
W.  Va.  483,  61   S.  E.  410. 

Warvelle  Abstracts — 39 


610  ABSTRACTS   OF   TITLE.  [§  583 

is  of  record,  or  the  party  in  possession  has  notice  of  its  existence. 
This,  however,  applies  only  to  legal  estates.  Where  the  estate  in 
remainder  is  ecjuitable  an  adverse  possession  may  be  acquired 
under  claim  of  legal  title  and  the  remainder-man's  rights  be  barred 
by  lapse  of  time.'^^  But  when  a  party  has  had  the  uninterrupted 
and  undisputed  possession  of  land  for  the  statutory  period,  and 
during  that  time  has  paid  all  taxes  legally  assessed  thereon,  and 
has  had  neither  actual  nor  constructive  notice  of  a  prior  unre- 
corded conve.yance  creating  a  life  estate  with  a  remainder  over 
to  othei*s,  such  possession  and  payment  of  taxes  by  him  will  be 
a  bar  to  a  recovery  by  such  remainder-man,  even  though  the  full 
period  of  the  statute  has  not  elapsed  since  the  termination  of  the 
life  estate,  and  notwithstanding  the  fact,  that  the  party  so  assert- 
ing title  is,  by  the  terms  of  such  undisclosed  deed,  made  a  tenant 
in  coinmon  with  such  remainder-man.'*^* 

§  584.  Reversioners.  As  against  a  reversioner  there  can  be 
no  adverse  possession.  It  can  only  exist  against  one  entitled  to 
possession.'' 


73 


§  585.  Tenants  in  Common.  The  general  rule  is,  that  the  statute 
of  limitations  does  not  run  as  between  tenants  in  common,  for 
the  reason,  in  part,  that  the  possession  of  one,  in  contemplation 
of  law,  is  the  possession  of  all,''*  and  this  is  especially  so  when  all 
the  parties  derive  title  through  the  same  deed  or  conveyance.''* 
But  if  a  tenant  in  common  conveys  the  whole  tract,  by  a  deed 
which  purports  to  include  the  entire  estate,  his  grantee,  if  in  pos- 
session, will  hold  adversely  to  the  others,''^  while  the  possession 
of  one  of  several  tenants  may  become  adverse,  Avhen  his  acts 
amount  to  an  exclusion  of  his  co-tenants.'''' 

71  See,  Commonwealth  v.  Clark,  119  Ware,    67   Mo.    74;    Aquirre   v.   Alex- 

Ky.   85,  83   S.   W.    100.  ander,   58   Cal.    21. 

72Dugan   v.    Follett,    100    111.   581.  75  Dugan   v.    Follett,    100    111.    581. 

73  Clark  v.  Huges,  13  Barb.  147 ;  76  Clapp  v.  Bromagham,  9  Cow. 
Gernet  v.  Lynn,  31  Pa.  St.  94;  Ray-  530;  Florence  v.  Hopkins,  46  N.  Y, 
raond  V.  Haider,  2  Cush.  (Mass.)  182;  Eigg  v.  Fuller,  54  Ala.  141; 
269;  Webster  v.  Pittsburg,  etc.  Ry.  Faulke  v.  Bond,  41  N.  J.  L.  527. 
Co.,  78  Ohio  St.  87,  84  N.  E.  592,  77  Florence  v.  Hopkins,  46  N.  Y. 
15  L.  E.  A.  (N.  S.)  1154.  The  text  182;  Dobbins  v.  Dobbins,  141  N.  C. 
states  the  general  rule  but  excep-  210,  53  S.  E.  870.  Though  adverse 
tional  cases  may  at  times  militate  possession  and  disseizin  may  not  be 
against    it.  in  all  particulars  identical,  their  ef- 

74  Dugan  v.  Follett,  100  111.  581;  feet  is  the  same  for  the  purpose  of 
Ang.  on  Lim.  §422;  Florence  v.  Hop-  tenninating  a  tenancy  in  common: 
kins,    46    N.    Y.    182;    McQuiddy    v.  Millard   v.   McMullen,  68  N.   Y.   345. 


§  588]  ADVERSE  TITLE.  611 

§  586.  Persons  Under  Disability.  A  special  exception  lias  been 
made  by  the  statute  in  case  of  infants,  insane  persons,  and  persons 
imprisoned  on  a  criminal  charge  for  any  period  less  than  life," 
and  their  rights  in  land  are  not  only  protected  during  the  period 
of  disability,  but  for  a  certain  period  after  the  disability  has 
ceased,  or  after  the  death  of  a  person  dying  under  disability.  This 
period  is  usually  fixed  at  ten  j-ears,  but  the  statutes  vary  in  this 
particular.  It  will  be  seen,  therefore,  that  before  anj^  positive 
assurance  can  be  entertained  that  a  title  has  become  perfect  by 
adverse  possession  or  prescriptive  user,  it  must  appear,  not  only 
that  the  property  has  been  adversely  held  for  the  requisite  time, 
but  also  that  it  has  been  held  against  some  person  against  whom 
a  prescriptive  title  can  be  acquired.'''^ 

But  unless  provided  for  in  express  terms  this  statutory  excep- 
tion does  not  have  the  affect  of  suspending  the  operation  of  the 
statute  of  limitations  after  it  has  legitimately  commenced  to  run, 
and  hence,  if  an  adverse  possession  commence  in  the  lifetime  of 
an  ancestor,  it  will  continue  to  run  against  the  heir,  notwithstand- 
ing any  existing  disability'  on  the  part  of  the  latter  when  the  right 
accrues  to  him  or  her.'® 

§  587.  Married  Women.  In  the  absence  of  evidence  to  the 
contrary  the  presumption  of  law  is,  that  the  possession  of  hus- 
band and  wife  in  the  joint  occupancy  of  land  as  a  home  is  the 
possession  of  the  husband,  but  this  presumption  may  be  rebutted 
by  a  showing  that  the  woman  took  and  held  possession  in  her 
own  right  and  so  continued  to  hold  during  the  statutory  period 
of  limitation.  If  such  is  the  case,  her  title,  when  once  vested,  can- 
not be  affected  by  any  recovery  in  ejectment  against  the  hus- 
band nor  by  any  of  his  acts  or  declarations  during  the  joint  oc- 
cupation.*^ 

§  588.  Adverse  Rights  as  Against  the  State.  It  is  matter  of 
common  knowledge  that  statutes  of  limitation  do  not  run  against 
the  State.  That  no  laches  can  be  imputed  to  the  king,  and  that 
no  time  can  bar  his  rights,  was  the  maxim  of  the  common  law, 
and  was  founded  on  the  principle  of  public  policy,  that,  as  he 

78  Married    women    are    sometimes  Y.),  85;  Jackson  v.  Moore,  13  Johns, 

included    in   this    exception.  (N.    Y.)    513;    Oates    v.    Beckworth, 

79Melvin     v.     Whiting,     13     Pick.  112   Ala.   356;   White  v.  Clawson,   79 

(Mass.)    188;    Arbuckle   v.   Ward,   29  Ind.    192. 

Vt.   55.  SI  Collins    v.    Lynch,    157    Pa.    St. 

80  Fleming  v.  Griswold,  3  Hill   (N.  246. 


612  ABSTRACTS   OF   TITLE.  [§  588 

was  oceupiod  with  the  cares  of  government  he  ought  not  to  suffer 
from  the  iiofjligeiico  of  his  officers  and  servants.  The  principle 
is  applicable  to  all  governments  which  must  necessarily  act  through 
numerous  agents,  and  it  is  essential  to  a  preservation  of  the  in- 
terest and  property  of  the  public.'^  It  is  upon  this  principle  that 
in  this  country  the  statutes  of  a  State  prescribing  periods  within 
which  rights  must  be  pro.secuted  are  not  held  to  embrace  the  State 
itself,*^  unless  it  is  expressly  included,  or  the  mischiefs  to  be  rem- 
edied are  of  such  a  nature  that  it  must  necessarily  be  included. 
As  legislation  of  a  State  can  only  apply  to  persons  and  things  over 
which  the  State  has  jurisdiction,  the  United  States  are  also  neces- 
sarily excluded  from  the  operation  of  such  statutes.**  But  the 
State  may  submit  itself  to  the  operation  of  the  statute,  in  which 
event  the  same  rule  as  to  ouster  and  possession  will  obtain  where 
the  State  is  the  owner  as  would  apply  in  the  case  of  private  par- 
ties." 

As  adverse  possession  cannot  run  against  the  government,  it 
logically  follows  that  the  claim  can  not  be  asserted  against  a 
grantee  of  the  government,  and  mere  possession  of  government 
lands,  though  open,  exclusive  and  uninterrupted  for  twenty  j^ears, 
creates  no  impediment  to  its  recovery  by  the  government,  or  by 
one  who  within  that  period  receives  a  conveyance  from  the  govern- 
ment.'® 

§  589.  Effect  of  Adverse  Possession.  When  title  to  land  has 
been  perfected  by  twenty  years'  adverse  possession  and  enjoy- 
ment, it  becomes   equally  as  strong  as  one  obtained  by  grant,'"^ 

82  Gibson  v.  Chouteau,  13  Wall.  92.       proof  that  the  title  of  the  government 

83  Gardiner  v.   Miller,   47   Cal.   570.       has  been  parted  with  and  has  devolved 
84 United    States    v.    IToar,    2    Ma-       on  him;   so  held,  where  a  patent  had 

son,     312;     People     v.     Gilbert,     18  been  issued  to  one,  of  lands  then  in 

Johns.    228.  possession    of    another,    who    claimed 

85  See,  Schneider  v.  Hutchinson,  same  by  virtue  of  a  selection  by  the 
35  Oreg.  253 ;  St.  Paul  v.  Ey.  Co.,  State  in  lieu  of  section  sixteen,  but 
45  Minn.  396;  Green  v.  Irving,  54  to  prove  which  no  primary  evidence 
Miss.   450.      Consult   local    statutes.  could    be    adduced.      See    Hedrick    v. 

86  0aksmith  v.  Johnson,  92  U.  K.  Hughes,  15  Wall.  (V.  S.)  123. 
343.  But  while  it  is  true  that  mere  87  Sherman  v.  Kane,  86  N.  Y.  57; 
lapse  of  time  and  continuance  of  Schneider  v.  Botsch,  90  111.  577 ; 
possession  without  pretense  of  title,  Bowen  v.  Preston,  48  Ind.  367.  The 
or  under  pretense  of  a  void  title,  can  presumption  of  a  grant  from  adverse 
not  be  set  up  against  the  government,  possession  continued  for  the  statu- 
yet  long  possession  is  nevertheless  a  tory  term,  is  not  founded  on  any 
strong  weapon  of  defense  in  the  probability  of  an  actual  grant,  but 
hands  of  one  who  can  show  reasonable  is    a    positive    rule    established     for 


§590]  ADVERSE   TITLE.  613 

and  creates  in  the  person  so  asserting  same,  if  otherwise  unim- 
paired, a  legal  title  to  the  fee  which  is  effective  for  all  purposes.** 
In  many  States,  ten,  seven  or  even  five  years'  uninterrupted  pos- 
session under  color  of  title,  coupled  with  acts  of  ownership,  pay- 
ment of  taxes,  etc.,  will,  under  the  operation  of  the  statute,  cure 
defects  in  the  instruments  under  which  the  entry  was  made,  and 
bar  all  actions  for  the  recovery  of  the  land,  thus  securing  to  the 
occupier  an  indefeasible  title  in  law,  no  matter  how  defective  the 
title  of  the  grantor,  or  the  instrument  of  conveyance,  may  have 
been.*^  This  circumstance,  in  cases  where  no  disability  is  shown 
to  exist,  is  often  of  vital  importance  in  passing  titles  otherwise 
defective  and  lays  at  rest  a  vast  number  of  questions  that  fre- 
quently require  long  and  laborious  investigation  to  properly  solve. 
The  statutory  requisites  relative  to  possession  and  perfection  of 
title  must  be  fully  ascertained,  however,  either  by  record  evidence 
or  otherwise  before  the  bar  of  the  statute  can  be  relied  on. 

§  590.  Proofs  to  Support  Title  by  Adverse  Possession.    When 

the  title  offered  is  adverse  in  its  character,  counsel  should  seek 
by  inquiries  in  pais  to  demonstrate  its  validity  before  passing 
same.  The  highest  and  best  record  proof  that  could  be  adduced 
would  be  the  judgment  of  some  court  of  competent  jurisdiction, 
either  in  an  action  of  ejectment  or  a  suit  to  quiet  the  title.  A 
deed  purporting  to  convey  the  title  is  next  in  order,  while  pay- 
ment of  taxes  and  the  like  still  further  tend  to  strengthen  it.^® 
Many  of  the  facts  which  go  to  confirm  an  adverse  title  are  not  cap- 
able, however,  of  affirmative  showing  in  an  abstract,  and  evidence 
concerning  them  must,  from  the  nature  of  the  title,  be  disclosed 
aliunde.^^ 

In  an  examination  of  title  a  much  greater  degree  of  strictness 
in  the  proof  should  be  insisted  upon  than  would  be  necessary  to 

quieting   titles:      Molviii   v.   Waddell,  49  Vt.  314;  Brown  v.  T?ose,  48  Iowa, 

75   N.   C.   361.  231.      But    payment    of    taxes    for    a 

88  Covington  v.  Stewart,  77  N.  C.  fixed  period  of  years,  coupled  with 
148.  possession  and  color  of  title,  will  by 

89  Ryan  v.  Kilpatrick,  66  Ala.  332;  statute,  in  some  States,  confer  a 
Hunton  v.  Nichols,  ^5  Tex.  217;  title  commensurate  with  the  deed  un- 
.Stark  V.  Brown,  101  111.  395;  Harris  der   which    entry   was    made. 

V.    McGovern,    99   U.    S.    161;    Moin-  91  Consult   Turner   v.   Hall,   60   Mo. 

gona  Coal  Co.  v.  Blair,  51  Iowa,  447 ;  271 ;    Howland    v.    Cemetery    Assoc, 

Jones  V.   Patterson,   62   Ga.   527.  66   Barb.    366;    Soule   v.    Barlow,   48 

90  Paying  taxes  on  land  is  not  evi  Vt.  132;  Harnage  v.  Berry,  43  Tex. 
dence  of  possession,  but  goes  to  show  567;  Kerr  v.  Hitt,  75  111.  51. 

a  claim  of  title:     Paine  v.  Hutchins, 


614  ABSTRACTS   OF    TITLE.  [§  590 

support  a  claim  in  a  legal  proceeding.  In  the  latter  case  affirma- 
tive evidence  is  usually  all  that  is  required,  but  in  the  former, 
inasmuch  as  there  is  no  one  to  present  negative  evidence,  coun- 
sel should  require  the  person  asserting  the  title  to  satisfactorily 
show  that  no  evidence  of  this  kind  exists;  as,  that  the  claim  is  not 
liable  to  be  defeated  by  the  infancy  of  heirs  of  the  servient  estate, 
or  the  lunacy  or  disability  of  parties  who  might,  were  it  not  for 
such  disability,  be  able  to  establish  a  claim. 


CHAPTER  XXXII. 


OPINIONS    OF    TITLE. 


§  591.  Perusing   the    abstract.  §  607. 

§  592.  Note   taking.  §  608. 

§  593.  Examination  of  the  muniments.  §  609. 

§  594.  Examination  of  deeds.  §  610. 

§  595.  Examination  of  legal  proceed- 
ings and  judgments.  §  611. 

§  596.  Marginal     notes     and     requisi-  §  612. 

tions.  §  613. 

§  597.  Continued.  §  614. 

§  598.  Answers  to  requisitions.  §  615. 

§  599.  Affidavits  of  pedigree.  ■  §  616. 

§  600.  Analysis  of  title. 

§  601.  Analytical  chains.  §  617. 

§  602.  Sketch  maps.  §  618. 

§  603.  Preservation  of  memoranda.  §  619. 

§  604.  Passing  the  title. 

§  605.  What  constitutes  a  valid  title.  §  620. 

§  606.  Flaws. 


Clouds   upon   title. 

Inquiries   in  pais. 

Continued — Mechanics '    liens. 

Continued  —  Easements  and 
Servitudes. 

Continued — Homesteads. 

Printed  copies. 

Framing  opinions. 

Opinions  of  title. 

Continued — Certificates  of  title. 

Opinions  based  upon  the  ab- 
stract. 

Perspicuity  of  expression. 

Oral  opinions. 

Liability  for  erroneous  opin- 
ions. 

Conclusion. 


§591.  Perusing  the  Abstract.  No  specific  rules  can  be  laid 
down  in  regard  to  the  perusal  of  an  abstract  by  counsel,  as  this 
is  something  that  depends  largely  on  the  habits  and  professional 
methods  of  the  individual.  "The  perusal  should,  if  the  length 
of  the  abstract  will  permit  of  it,"  says  Sugden,^  "be  finished  at 
one  sitting,  although  any  difficult  point  of  law,  the  whole  bearing 
o£  which  is  not  ascertained,  may  properly  be  reserved  for  further 
and  separate  consideration;"  and  this  perhaps,  will,  to  the  major- 
ity of  the  profession,  be  found  to  be  the  method  best  calculated  to 
produce  satisfactory  results.  "It  may  sometimes  be  useful,"  says 
the  same  author,^  to  glance  over  the  abstract  in  the  first  place,  in 
order  to  obtain  a  general  view  of  the  title,  and  experience  will 
rapidly  point  out  when  a  subsequent  part  of  the  abstract  may  be 
looked  into  advantageously  before  its  proper  turn;  but,  speaking 
generally  an  abstract  should  be  perused  but  once,  and  that  once 
effectually.  The  party  should  never  pass  on  until  he  thoroughly 
comprehends  what  he  has  already  read;  the  advancing  in  a  diffi- 
cult title,  in  order  to  comprehend  what  you  have  passed  and  do 
not  understand,  often  leads  to  insurmountable  difficulties."     The 


1  Sugd.  on  Vendors,  10. 


2  Ibid. 


615 


BIG  ABSTRACTS    OF    TITLE.  [§591 

experience  of  the  writer  would  iiidieate  that  the  remarks  just 
(juoted  are  not  without  merit,  but  the  differenee  in  the  plan  of 
compilation,  as  well  a.s  the  efl'eet  of  the  instruments  with  reference 
to  registration,  notice,  and  other  incidentals  not  common  to  the 
English  abstract,  renders  necessary  a  somewhat  ditTerent  course 
from  that  pointed  out  by  Mr.  Sugden. 

Tiie  writer  suggests,  tlitft  whether  the  abstract  be  long  or  short, 
or  whether  the  title  be  simple  or  complicated,  a  general  perusal, 
in  order  to  obtain  a  preliminary  view  should  first  be  made.  This 
perusal  is  only  to  establish  the  fact  of  an  apparent  chain  of  title 
from  its  source,  the  government,  or  from  some  person  proposed 
in  whom  the  title  is  assumed  to  have  been  vested.  To  assist  in 
arriving  at  a  correct  estimate,  an  analysis  of  the  abstract  must 
always  be  made  in  intricate  cases,  and  such  a  course  will  be  found 
helpful  in  every  ca.se.  Having  established  the  fact  of  apparent 
title  extending  in  unbroken  sequence  from  the  intial  point  to  the 
person  in  whom  it  is  last  asserted,  a  critical  review  of  every  re- 
move' must  then  be  made  to  determine  its  effect  and  validity,  in 
much  the  same  manner,  though  not  for  the  same  purpose,  as  the 
English  counsel  examines  the  muniments.  All  defects,  whether 
of  form  or  substance,  are  noted  upon  the  analysis  just  mentioned, 
together  with  notes  of  discrepancies,  objections  and  requisitions  for 
further  information.  It  would  be  unwise,  however,  to  lay  down 
any  unvarying  rule  for  a  matter  of  this  kind.  Men's  minds  are 
not  alike,  and  the  methods  that  insure  the  best  results  in  the  case 
of  one,  may  be  entirely  inadequate  in  the  case  of  another.  The 
counsel's  personal  professional  habits  will,  after  all,  be  the  best 
guide,  but  should  he  have  no  decided  habits  of  professional  thought 
or  study,  it  is  believed  the  course  indicated  in  this  chapter  will 
enable  him  to  form  better  opinions,  and  arrive  at  more  satisfac- 
tory conclusions,  than  can  be  attained  by  any  haphazard  or  unde- 
fined methods. 

§  592.  Note  Taking.  The  real  utility  of  note  taking,  as  an  aid 
to  study  or  investigation  in  any  pursuit,  must  ever  remain  an 
open  question,  yet  it  can  not  be  denied  that  in  the  examination  of 
complicated  titles  the  use  of  notes  is,  in  a  majority  of  cases,  of 
imdoubted   benefit,   as   well   in   unraveling  a   tangled   chain  as  in 

3  For  want  of  a  better  name,  each  numbered    scriaiim    from    the    begin- 

link  in  the   chain,  whether   by  deed,  ning,    and    referred    to    by    number 

will,  mortgage,  lease,  etc.,  is  called  a  whenever  occasion  calls  for  reference, 
"remove,"   and   the   removes   are   all 


§  593]  OPINIONS   OF    TITLE.  617 

framing  subsequent  opinions.  In  the  judgment  of  some  writers, 
counsel  will  find  it  the  best  and  surest  method  of  arriving  at  a 
just  conclusion,  to  trust  to  his  view  of  the  title  on  the  face  of 
the  abstract  itself,  without  incumbering  himself  with  or  relying 
upon  notes,*  they  being  regarded  as  unnecessary  details  which  often 
serve  to  distract  the  attention. ^  Properly  and  methodically  used, 
however,  notes  will  usually  be  found  an  important  aid,  while  in 
complicated  cases  they  appear  almost  indispensable.  Particularly 
is  this  true  in  making  an  analysis  of  title,  where  the  interest  of 
every  person  connected  with  the  title,  or  possessing  anj^  rights  in 
the  land,  must  be  ascertained  at  every  remove,  and  notwithstand- 
ing the  fact  that  so  high  an  authority  as  Mr.  Sugden  condemns 
their  use,  tbe  American  counsel  will  find  that  in  a  majority  of 
instances  he  must  resort  to  them  or  run  the  risk  of  overlooking 
some  important  matter  in  making  up  his  final  estimate  of  titi' 
and  framing  his  opinion. 

§  593.  Examination  of  the  Muniments.  In  addition  to  the  gen- 
eral survey  of  title  from  all  the  instruments  and  proceedings, 
each  particular  step  must  be  examined  technically  and  critically, 
and  its  own  sufficiency  or  insufficiency  passed  upon.  Under  the 
English  system  this  would  consist  of  a  comparison  of  the  original 
instruments  with  the  abstract,^  but  this  task  under  the  American 

4Sugd.  on  Vendors,  10  (Am.  Ed.).  notes  taken  by  a  lawyer  in  looking 
6  The  prejudice  which  exists  among  up  a  question  on  which  to  advise  a 
many  distinguished  members  of  the  client,  or  references  which  will  en- 
profession  against  the  use  of  notes  able  him,  if  litigation  is  afterward 
as  an  aid  to  study  or  investigation,  re-  carried  on,  to  go  on  mth  the  case 
fers  more  particularly  to  common-  without  a  fresh  search.  See  Bish. 
placing  and  abridging,  and  though  First  Book  of  the  Law,  §  423. 
this  was  recommended  by  the  earlier  6  The  duty  of  a  solicitor  in  exam- 
writers,  notably  Fulbeck  (1599),  Sir  ining  an  abstract  is  thus  summed  up 
Matthew  Hale  (1688),  and  others  of  by  Mr.  Dart.  He  says:  "The  object 
later  periods,  as  Mr.  Hoffman,  in  our  of  the  examination  is  to  ascertain, 
own  time  and  country,  yet  modern  1st,  that  what  has  been  abstracted  is 
writers  like  Mr.  Warren,  Mr.  Bishop,  correctly  abstracted ;  2ndly,  that  what 
etc.,  strongly  condemn  the  practice.  is  omitted  is  clearly  immaterial ;  3dly, 
Mr.  Bishop  says  that  if  he  wishes  that  the  documents  are  perfect  as 
"to  rcmem&(?r  a  thing,  the  last  method  respects  execution,  attestation,  in- 
available  is  to  commit  it  to  paper.  dorsed  receipts,  registration,  stamps. 
This  is,  with  me,  to  put  it  out  of  etc. ;  and  4thly,  that  there  are  no 
the  jurisdiction  of  the  memory."  indorsed  notices,  nor  any  circum- 
This  prejudice,  however,  is  mostly  in  stances  attending  the  mode  of  cxe- 
regard  to  note-books  as  a  means  of  cution,  attestation,  etc.,  etc.,  calcu- 
assisting  the  memory,  and  the  author  lated  to  excite  suspicion."  Part  on 
last    quoted    admits    the    utility    of  Vendors,  381. 


618  ABSTRACTS   OF    TITLE.  [§  593 

system,  is  supposed  to  have  been  satisfactorily  performed  by  the 
abstract  maker,  and  all  that  counsel  is  expected  to  do  is  to  see 
that  the  instruments  as  they  are  presented  are  sufficient  in  form 
and  substantially  correct.  This  task  is  the  most  arduous  part 
of  the  examination,  for  the  sufficicncj-  of  every  instrument  and 
proceedinp:  must  not  only  be  investigated  with  respect  to  itself 
but  freciuently  with  reference  to  numerous  other  instruments  in 
the  chain  and  sometimes  in  connection  with  matters  not  disclosed 
by  the  abstract. 

Thus,  a  deed,  by  the  donee  of  a  power  under  a  will  to  dispose 
of  the  property  by  last  w'ill  and  testament,  he  having  also  the 
use  of  tlie  land  for  life,  presents  two  distinct  pliases.  In  the  first 
place  the  instrument  itself  must  be  considered  with  reference  to 
its  fonnal  parts;  its  date;  registration;  estate  conveyed — a  most 
vital  point ;  execution,  etc.  Viewed  only  in  this  light  it  may  be 
insufficient  as  failing  to  disclose  the  intention  of  the  donee  to 
execute  the  power,  and  though  purporting  to  convey  the  fee,  con- 
veys only  the  life  estate  of  the  grantor.''^  In  the  second  place, 
the  deed  must  be  construed  in  connection  with  the  will  granting 
the  power,  and  its  legal  sufficiency  considered  in  relation  to  such 
will,  presuming  that  in  form  it  is  unimpeachable  and  fully  dis- 
closes the  power  and  evinces  the  intention  of  the  gi'antor  to  work 
under  it.  Now  it  is  a  vexed  question  as  to  whether  it  is  possible 
for  the  donee  of  a  power  to  make  any  disposition  of  the  subject 
of  the  power  save  in  the  manner  indicated  in  the  instrument, 
granting  same.'  An  important  question  is  here  presented,  there- 
fore, and  upon  its  solution  depends  the  validity  of  the  proffered 
title.  The  donor  of  the  power  intended  that  it  should  be  exe- 
cuted by  the  will  of  the  donee;  he  has  attempted  to  execute  it 
by  deed.®     Here  counsel  must  refer  to  the  will  and  to  the  grant 

7 Dunning    v.    VanDusen,    47    Ind.  no  more:     See,  Pease  v.  Pilot  Knob 

423;    Jassey   v.   "White,    28    Ga.    295;  Iron  Co.,  49  Mo.  124. 

and    see    Funk   v.    Eggleston,    92    111.  8  See  §  392  for  a  discussion  of  this 

515.     In  order  to  execute  a  power  it  subject. 

is  not  absolutely  essential  that  a  deed  9  The  courts  in  England,  and  very 
should  recite  or  even  refer  to  the  generally  in  this  country,  have  de- 
power,  where  it  was  manifestly  the  termined  that  when  a  power  is  to  be 
intention  of  the  party  to  execute  the  executed  by  will,  the  donor  intended 
power.  But  where  the  maker  has  an  that  it  should  remain  under  the  con- 
estate  which  will  pass  without  exe-  tract  of  the  donee  ' '  to  the  moment 
cuting  the  power,  and  the  instrument  of  his  death."  And  the  authorities 
is  silent  on  that  point,  as  in  the  case  are  numerous,  and  uniform,  in  enun- 
supposed,  the  law  vrill  presume  that  elating  the  principle  that  the  donee 
he  intended  to  convey  such  estate  and  can    not    enlarge    and    amplify    the 


§  594]  OPINIONS    OF    TITLE.  619 

of  the  power  therein,  and  the  two  must  be  carefully  considered 
in  relation  to  their  effect  upon  the  title.  This  is  but  an  instance, 
but  it  is  sufficient  to  illustrate  the  matter  and  to  show  the  import- 
ance of  this  branch  of  the  examination  as  well  as  the  care  and 
attention  that  must  be  bestowed  upon  it. 

§  594.  Examination  of  Deeds.  It  is  not  proposed,  nor  is  it  nec- 
essary, to  recapitulate  all  that  has  preceded  relative  to  the  for- 
malities or  legal  effect  of  instruments  and  proceedings  offered  in 
support  of  title,  but  it  may  be  well,  at  this  point,  to  briefly  call 
the  attention  of  counsel  to  the  prominent  features  thereof  as  they 
are  presented  in  the  abstract.  After  a  proper  inception  of  title 
has  been  shown,  or  where  same  has  been  satisfactorily  established 
in  some  person  at  some  definite  period,  either  by  assumption  or 
investigation,  the  first  duty  of  counsel  is  to  see  that  the  course 
of  title  is  uninterrupted  from  that  person  and  period.  For  this 
purpose  he  should  observe  the  names  of  parties  and  dates  of  in- 
struments down  through  the  entire  chain,  and  note  all  places 
where  the  chronological  sequence  is  broken  or  in  inverse  order. 
This,  with  a  general  view  of  each  instrument,  constitutes  the 
preliminary  survey.  An  analysis  of  the  abstract,  if  it  be  long 
or  the  title  complicated,  must  now  be  made,  and  the  sufficiency 
and  effect  of  every  remove  noted  therein.  Again  returning  to 
the  first  instrument  he  should  read  the  same  carefully,  observing 
the  following  points,  which,  for  greater  certainty,  it  is  well  to 
put  interrogatively. 

The  parties:  are  they  properly  named  and  do  they  include  all 
who  by  the  initial  matters  are  shown  to  possess  title  or  interests  ?  ^° 
Have  they  all  executed  the  deed,  and  is  the  execution  correct  in 
form?  Observe  in  this  connection  any  apparent  differences  in  the 
orthography  of  names  as  shown  in  prior  or  subsequent  convey- 
ances, and  in  case  such  differences  appear,  make  a  requisition  for 
further  information  disclosing  identity.  See  that  correct  descrip- 
tio  personce  accompanies  the  names  as  indicative  of  capacity,  do- 
scope  of  the  power,  but  must  be  10  The  legal  effect  of  the  matters 
strictly  controlled  in  its  execution  mentioned  in  this  section  have  all 
by  the  declared  intention  of  the  been  discussed  in  other  parts  of  the 
donor;  and  that  a  power  to  be  exe-  work  and  the  authorities  relating 
cuted  by  will  can  not  be  executed  thereto  given.  The  reader  is  referred 
by  deed,  and  equity  will  not  relieve  to  the  various  heads,  and  subdivi- 
if  the  attempt  is  made:  Reid  v.  sions  under  which  they  will  severally 
Shergold,  10  Ves.  (Eng.)  370;  Wilks  be  found  for  extended  discussions, 
v.  Burns,  60  Md.  64. 


620  ABSTRACTS   OF   TITLE.  [§  594 

mestic  relations,  etc.  Where  one  conveys  aloue,  no  clue  being 
given  as  to  liis  domestic  status,  an  inquiry  as  to  marriage  can 
never  be  safely  omitted.  In  case  of  corporate  conveyances,  re- 
(juire,  if  necessary,  additional  evidence  relative  to  the  power  of 
tlie  corporation  to  receive,  hold  and  convey,  as  well  as  to  show 
proper  execution.  If  the  deed  is  the  act  of  a  municipalit}'  the 
resolution  of  authority  must  appear;  if  it  does  not  a  requisition 
for  same  should  be  made. 

The  estate:  what  estate  purports  to  be  conveyed?  If  the  entire 
estate,  observe  by  reference  to  prior  conveyances  what  estate  is 
held  by  the  grantor,  for  he  can  convey  no  more  than  he  possesses, 
whatever  be  the  form  of  words  used.  Is  it  incumbered  by  ex- 
pressed or  latent  liens?  lias  the  right  of  dower,  in  a  proper  case, 
been  relinquished?  Have  the  homestead  rights  been  waived?  and 
if  attempt  lias  been  made  in  either  case,  has  it  been  successfully 
accomplished?  If  the  abstract  fails  to  disclose  these  facts,  make 
a  requisition  for  further  information. 

The  property :  does  the  description  correspond  in  essential 
parts  to  the  caption  of  the  abstract,  or  to  the  subject  of  the  ex- 
amination? Does  it  correspond  with  prior  conveyances?  Observe 
carefully  for  omissions  and  misdescription. 

The  covenants  are  not  essential  to  title,  and,  being  simply  for 
the  further  assurance  of  the  purchaser,  ma}-  be  disregarded  ex- 
cept when  they  become  necessary  to  show  an  estoppel. 

The  conditions  are  important ;  observe  in  what  manner  they 
may  affect  title  by  reason  of  non-performance  or  breach.  Do  they 
disclose  a  possibility  of  divesture  of  title  at  some  future  period, 
or  confer  upon  the  grantor  contingent  reversionary  rights  of  re- 
entry or  forfeiture?  Do  they  create  a  conditional  limitation?  If 
the  deed  itself  is  the  result  of  prior  agreement,  does  it  substan- 
tially conform  to  such  prior  agreement  as  shown?  This  inquiry 
is  not  always  important,  but  may  become  so. 

The  dates :  compare  the  dates  respectively,  of  execution,  ac- 
knowledgment, and  registration.  Do  they  show  a  proper  corre- 
spondence? Compare  these  dates  with  those  of  prior  and  subse- 
quent conveyances.  In  ease  of  conflicting  titles  from  the  same 
source,  this  may  become  very  important  in  the  solution  of  ques- 
tions depending  on  priority. 

§  595.  Examination  of  Legal  Proceedings  and  Judgments.    So 

much  has  been  said  upon  this  subject  in  the  preceding  chapters 
that  little  remains  without  indulging  in  repetition,  yet,  as  it  has 
long  been  customary  in  nearly  every  part  of  the  country  to  look 


§  595]  OPINIONS   OP    TITLE.  621 

solely  to  deeds  as  evidences  of  title,  it  is  the  desire  of  the  writer 
to  strongly  impress  upon  the  minds  of  examiner  and  counsel  that 
all  conveyances  resulting  from  legal  proceedings,  aside  from  their 
prima,  facie  quality,  are  valueless  as  evidence  without  proof  of 
capacity  in  the  grantor,  and  this  can  come  only  from  the  fact 
of  jurisdiction  in  the  court  pronouncing  the  judgment  or  decree. 
Should  evidence  of  this  fact  be  wanting,  a  requisition  must  be 
made  for  further  information  concerning  same,  and  in  no  case 
should  a  deed  made  in  pursuance  of  a  judicial  sale  be  passed  with- 
out full  proof  of  its  validity. 

Where  official  deeds  of  any  kind  are,  by  statute,  made  presump- 
tive evidence  of  their  own  validity  and  of  the  validity  and  regu- 
larity of  the  anterior  proceedings  upon  w^hich  they  rest,  and 
counsel  relying  on  the  priyna  facie  evidence  thus  presented  dis- 
penses with  proof  of  prior  regularity  and  jurisdiction,  prudence, 
as  well  as  fair  dealing,  would  suggest  that  special  reference  to 
such  facts  be  made  in  the  opinion,  that  the  client  and  his  assigns 
may  know  that  the  title  passed  is  a  prima  facie  title  only,  and  has 
not  been  demonstrated. 

In  the  preliminary  measures  to  all  execution  and  judicial  sales 
counsel  will  first  observe  that  the  proceeding  is  apparently  regu- 
lar and  formal ;  this  is  not  vital,  but  may  in  some  instances  sug- 
gest an  inquiry  that  requires  answer.  Next,  he  should  observe, 
the  parties:  do  the  names  in  process,  pleadings  and  judgment 
correspond?  Has  there  been  a  personal  appearance,  or  was  the 
judgment  taken  on  default?  If  the  latter,  does  the  abstract  show 
a  due  and  legal  service  of  process,  either  personal  or  substituted? 
The  subject-matter:  do  the  pleadings  disclose  a  cause  of  action 
within  the  jurisdiction  of  the  court  ?  The  judgment  or  decree : 
is  it  regular  in  form.  ?'.  e.,  definite,  certain,  etc.?  Does  it  corre- 
spond with  the  i^rocess  and  pleading,  i.  e.,  parties  and  allegations? 
The  sale:  is  it  warranted  by  the  prior  proceedings?  Is  the  sell- 
ing officer  clothed  with  proper  authority?  Was  it  conducted 
according  to  law  ' 

With  respect  to  judgments  in  personam:  observe  the  names 
of  defendants  or  judgment  debtors ;  are  they  identical  with  those 
of  the  persons  who  now  own  the  land,  or  who  at  some  former 
period  have  held  title  or  possessed  equities  capable  of  being 
reached  by  execution?  Resolve  any  doubts  that  may  arise  by  a 
requisition.  Affidavits  of  identity  and  disclaimer  are  about  the 
best  available  means  for  determining  this  point.  A  certificate  by 
plaintiff's  attorney,  when  such  can  be  procured,  will  also  serve  to 


G22  ABSTRACTS   OF   TITLE.  [§  595 

remove  douhfs  coiicH'rninu;  ilie  ideiility  of  persons  bearing  the 
same  numc.  is  the  ju(|ij;:nieiit  still  a  subsisting  lien'/  Was  exe- 
eution  issuetl  witiiin  a  year  from  rendition?  If  dormant,  has  there 
been  a  revivoi-?  If  against  a  party  in  interest  lias  it  been  appealed 
from?  An  appeal  does  not  destroy  the  lien  but  may  act  as  a 
supersedeas.  Jf  it  is  a  subsisting  lien  provision  should  be  made 
for  its  satisfaction  before  accepting  title. 

Wliere  questions  of  identity  arise  with  respect  to  judgment 
debtors  it  is  now  customary  to  procure  evidence  of  the  fact  by 
a  statement  in  writing  from  the  plaintiff's  attorney.  This  state- 
ment, whenever  practicable,  is  best  made  by  a  marginal  note  on 
the  abstract  set  opposite  the  recital  of  the  judgment.  This,  in  a 
proper  sense,  makes  it  a  part  of  the  abstract  and  forms  a  perma- 
nent memorial  of  the  fact.  Such  a  note  is  not  a  mutilation  of  the 
abstract  but  a  proper  addition  from  a  competent  .source,  and  the 
practice  now  has  the  general  approval  of  the  legal  profession. 
The  note  should  be  sufficiently  explicit  to  show  who  the  judgment 
debtor  actually  is,  or  that  he  is  not  a  party  named  in  the  abstract. 

§  596.  Marginal  Notes  and  Requisitions.  It  will  be  remem- 
bered that  in  England  the  abstract  is  compiled  almost  entirely 
from  original  documents,  and  that  devious  courses  as  w^ell  as  in- 
tervals of  title  are  supplemented  and  filled  up  by  matter  which 
to  the  American  examiner  would  be  entirely  extraneous.  So  the 
English  counsel,  as  he  proceeds  in  the  perusal,  frequently  calls, 
in  the  margin,^*  for  evidence  of  facts  which  he  supposes  may  be 
material  and  will  readily  be  produced,  and  further  notes  such 
objections  to  the  vendor's  title  as  he  thinks  proper;  all  of  which 
must  be  satisfactorily  met  and  answered  by  the  vendor  and  his 
solicitor.  In  a  less  degree,  the  same  procedure  may  be  followed 
by  the  American  counsel,  though  many  of  the  "requisitions"  nec- 
essary to  the  proper  elucidation  of  an  English  title  ate  unneces- 
sary in  the  United  States  by  reason  of  our  system  of  registration 
and  its  attendant  doctrines  of  notice  and  estoppel.  Where,  how- 
ever, an  apparent  descent  occurs  in  the  abstract,  and  a  deed  is 
shown  purporting  to  be  executed  by  the  "heirs  at  law"  of  the 
person  last  seized,  a  call  should  be  made  for  further  inquiry  or 
evidence  touching  the  legitimacy  of  the  claim  of  title  thus  asserted. 
So,  too,  of  a  partition  among  heirs,  by  the  mutual  interchange 
of  deeds,  in  which  minors'  rights  may  be  affected. 

11  The     English     abstract     is     fre-  the   observations   of   examining   coun- 

quently    -written    upon    a    sheet    with  sel.     The  calls  and  requisitions  made 

four  margins    (so  called),  the   outer  on   this  margin  thus   become  a  part 

left   hand    one    being    left   clear    for  of  the  abstract. 


§  598]  OPINIONS   OF   TITLE.  623 

Frequently  a  death  is  suggested  inferentially,  as  where  a  man 
and  wife  convey,  and  on  subsequent  revesture  of  title  the  man 
alone  executes  a  deed.  In  the  same  way  a  marriage  may  be  sug- 
gested, and  in  every  case,  where  an  individual  conveys  with  no 
words  descriptive  of  the  person,  inquirj^  should  be  made  in  re- 
gard to  marriage. 

American  abstracts  are  not  made  with  a  "margin,"  however, 
and  the  little  strip  on  the  left  hand  side  of  the  sheet  was  not 
left  to  write  or  scribble  on,  nor  should  the  examining  counsel 
use  it  for  that  purpose.  If  by  chance,  or  sheer  perversity,  he 
should  do  so,  his  writing  should  all  be  erased  before  the  abstract 
leaves  his  hands,  that  what  he  has  written  may  not  confuse  others 
or  be  mistaken  for  the  work  of  the  abstract  maker.  Objections 
may  be  noted  on  his  analysis,  or  preserved  on  separate  sheets,  and 
when  required  for  use  may  be  formally  drafted  and  annexed  to 
the  abstract,  or  embodied  in  his  opinion.  Even  in  England,  where 
the  custom  originated,  it  seems  to  be  generally  discouraged  by 
modern  conveyancers  and  solicitors,  as  will  be  seen  by  the  next 
paragraph. 

§  597.  Continued.  The  American  system  of  title  abstracts,  or 
at  least  that  expounded  in  this  work,  does  not  contemplate  the 
marginal  divisions  used  in  the  compilation  of  English  abstracts, 
and  hence,  the  only  margin  is  the  narrow  strip  on  the  left  hand 
side  of  an  ordinarily  ruled  page  of  legal  cap,  which  is  often  used 
for  lead  pencil  memoranda,  all  of  which  should  be  erased  before 
the  abstract  is  returned  to  the  client.  It  would  seem  to  be  the 
present  custom  of  English  counsel  to  make  their  formal  requisi- 
tions on  a  separate  sheet  of  paper,  which  has  been  divided  longi- 
tudinally by  being  folded  down  the  middle.  Upon  the  left  half 
of  this  sheet,  counsel,  from  the  notes  taken  in  the  course  of  perus- 
ing the  abstract,  draws  his  questions,  inquiries,  objections,  etc., 
and  delivers  the  same  for  answers.  The  vendor,  or  his  solicitor, 
then  peruses  the  requisitions,  and  proceeds  to  the  reply  to  them 
on  the  right  half  of  the  sheet,  the  questions  and  answers  being 
numbered  in  consecutive  order,  and  the  replies,  so  far  as  prac- 
ticable, being  written  opposite  to  the  requisitions.  It  is  not  thought 
that  this  is  practiced  to  any  considerable  extent  in  this  country, 
or  at  least,  if  practiced,  it  has  never  been  brought  to  the  atten- 
tion of  the  writer.     In  a  modified  form  it  might  be  found  useful. 

§  598.  Answers  to  Requisitions.     ' '  A  purchaser  is  entitled, ' ' 
observes  an  English  writer, ^'^  "to  be  furnished  with  evidence  of 
12  Seaborne  Vend.  &   P.    175. 


624  ABSTRACTS   OF    TITLE.  [§  598 

facts  material  to  tlie  tillo.  wlietlicr  such  facts  are  to  be  used  as 
positive  or  negative  proofs,  and  the  vendor  is  bound  to  answer, 
to  the  best  of  his  knowledge,  any  relevant  question  upon  the  sub- 
ject of  the  title,  and  to  furnish  such  evidence  as  may  be  in  his 
power;  but  the  purchaser  must  confine  his  questions  to  some  par- 
ticular defect,  and  not  call  for  a  general  explanation  of  matters 
wliich  li(^  may  consider  require  to  be  explained."^*  The  foregoing 
remarks,  though  made  in  relation  to  the  English  laws  on  the  sub- 
ject of  sales  of  real  property,  are  not  without  some  force  in  the 
T'nited  States,  but,  as  a  rule,  and  unless  the  agreement  for  sale 
otherwise  provides,  the  purchaser  is  entitled  to  a  full  disclosure 
of  everything  in  any  way  material,  and  the  evidence  should,  so 
far  as  practicable,  enable  the  purchaser  to  deduce  a  marketable 
title  of  record.  Where  affidavits,  or  other  instruments  are  fur- 
nished in  answer  to  re(|uisitions,  such  instruments  should  be 
recorded,  if  accepted,  as  they  then  constitute  a  j^art  of  the  muni- 
ments of  title."  Statements  not  under  oath  or  not  attested  by 
any  solemnities  are  too  unsatisfactory,  even  though  reduced  to 
writing,  though  sometimes  from  necessity,  or  under  a  choice  of 
difficulties,  letters  are  admissible  to  supply  information  or  fur- 
nish data  for  missing  facts.  Certificates,  particularly  when 
made  in  the  line  of  official  duty,  may  be  received,  and  for  many 
purposes  they  would  be  prima  facie  evidence  of  the  facts  recited. 

§  599.  Affidavits  of  Pedigree.  Frequent  allusion  has  been  made 
in  this  work  to  titles  asserted  by  descent,  in  which  no  probate 
or  other  court  proceedings  have  been  had  and  the  unsubstantial 
and  unsatisfactory  nature  of  such  titles  has  been  duly  consid- 
ered. As  before  remarked,  it  is  customary  for  counsel  to  call 
for  additional  evidence  in  such  cases  as  to  the  right  of  the  party 
a.sserting  title  to  make  a  deed,  and  this  is  usually  supplied,  in 
the  absence  of  better  testimony,  by  ex  parte  affidavits  of  pedi- 
gree. Facts  involved  in  a  question  of  pedigree  should,  when- 
ever practicable,  be  stated  upon  the  personal  knowledge  of  the 

13  Green  v.  Pulsford,  2  Beav.  after  all  inquiries  have  been  made 
(Eng.)  70;  Pearse  v.  Pearse,  1  DeG.  and  requisitions  supplied,  the  matter 
&  S.  (Eng.)  12.  These  matters  are  thus  obtained,  or  such  portions  as 
usually  arranged  beforehand  by  what  are  susceptible,  should  be  recorded, 
is  called  the  "Conditions  of  Sale,"  and  a  supplemental  abstract  of  same 
an  instrument  resembling  what  is  made  and  appended  to  the  original, 
known  in  this  country  as  a  "Contract  This  would  make,  so  far  as  may  be, 
for  Sale,"  (not  "Agreement  to  a  perfect  and  coherent  title,  and  is 
Deed")  but  much  more  circunistan-  preferable  to  an  opinion  showing  all 
tial  and  explicit.  the  defects,  which  must  be  remedied 

14  As   suggested,   in   another  place,  afterward. 


§  599]  OPINIONS   OP   TITLE,  625 

affiant,  but  may  be  established  by  proof  of  general  reputation 
-in  the  family,  or  even  by  proof  of  what  deceased  members  of 
the  family  may  have  said.^^  From  the  necessity  of  the  case, 
hearsay  evidence  of  certain  kinds  is  admissible  in  establishing 
matters  of  this  character,  because  it  is  the  best  of  which  the 
nature  of  the  case  admits,^^  but  such  evidence  is  restricted  to  the 
declarations  of  deceased  persons  who  were  related  by  blood  or 
marriage  to  the  person  from  whom  the  descent  is  deduced." 

An  affidavit  of  pedigree  may  be  prepared  in  manner  fol- 
lowing : 

State  of  Illinois     ) 

County  of  Cook      ( 

Thomas  Jones,  being  first  duly  sworn,  on  oath  says:  That  he 
was  well  acquainted  with  James  Smith  in  his  lifetime;  that  said 
James  Smith  died,  at  the  City  of  Chicago,  III.,  June  1,  1904.  That 
said  James  Smith  was  married  hut  once  and  then  to  Sarah  Wil- 
liams; that  three  children  were  horn  of  the  marriage,  to  wit; 
Andrew  Smith,  a  son,  who  died  in  the  lifetime  of  said  James  Smith, 
unmarried  and  without  issue;  Thomas  Smith,  a  son;  and  Sarah 
Smith,  a  daughter,  now  the  wife  of  William  Jackson.  That  at  the 
time  of  his  death  said  James  Smith  left  him,  surviving  his  widow, 
Sarah  Smith,  his  son,  Thomas  Smith,  and  his  daughter,  Sarah 
Smith  (Jackson),  his  only  heirs  at  law  and  next  of  kin. 
(Jurat.)  (Signed)     Thomas  Jones. 

To  the  foregoing  should  be  added  such  facts  as  to  counsel  may 
seem  material  in  the  particular  case,  but  the  recitals  above  stated 
are  all  that  are  essential  to  show  a  valid  descent  to  lineal  heirs. 
Where  the  decedent  was  unmarried,  and  the  descent  is  claimed  by 
collateral  heirs,  more  detail  will  be  necessary.  In  such  case  the 
affidavit  must  show  the  death,  marriage  and  issue  of  the  common 
ancestor  as  well  as  the  death,  without  issue,  of  any  one  who  other- 
wise might  have  participated  in  the  inheritance.  The  example 
above  given  will  serve  to  indicate  the  manner  of  framing  such 
an  affidavit.  Whenever  the  affiant  is  a  member  of  the  family,  or 
is  related,  either  by  blood  or  affinity,  to  any  of  the  parties,  or 
where    special    circumstances   have    given    him    opportunities   for 

16  Harland    v.    Eastman,    107    111.  17  Blackburn  v.  Crawford 's  Lessee, 

.535;  Eisenlord  v.  Clum,  126  N.  Y.  Wall.  (IT.  S.)  175;  Harland  v,  East- 
552.  man,    107    111.    535;    1    Greenl.    Evi- 

16  Harland    v.    Eastman,    107    111.       dence,   §103;   1   Tayl.  Ev.   §576. 
.^35;  Blackburn  v.  Crawford's  Lessee, 
3  Wall.    (U.   S.)    175. 

Warvelle  Abstracts — 40 


626  ABSTRACTS   OP   TITLE.  [§  600 

knowledge  of  a  family  history,   it   is  always  well  to  incorporate 
the  fact  in  the  affidavit. 

§  600.  Analysis  of  Title.  Every  person  who  has  ever  attempted 
to  critically  examine  an  abstract  consisting  of  twenty  removes, 
or  more,  mnst  have  experienced  some  difficulty  in  endeavoring, 
while  grappling  with  a  present  question,  to  still  keep  in  view  the 
past  course  of  title,  or  to  apply  it  toward  Ihe  solution  of  the  ques- 
tion under  consideration.  A  master  mind,  possibly,  might  be  able 
to  successfully  encompass  the  matter  and  from  chaos  bring  order 
with  no  external  aids,  but  to  the  average  lawyer  some  assistance 
is  frequently  indispensable,  and  this  may  be  obtained  by  making, 
what  may  be  called  an  analysis  of  the  title,  as  he  proceeds  in  its 
perusal.  This  is  accomplished  by  a  chain,  on  which  is  noted  the 
condition  of  the  ownership  of  the  land  after  every  conveyance, 
and  is  a  sort  of  balance  sheet  which  shows  the  state  of  the  title 
at  every  stage.  For  tracing  minute,  varied,  or  numerous  owner- 
ships, it  can  not  be  well  dispensed  with,  and  its  use  can  frequently 
be  advantageously  supplemented  bj'  sketch  maps  of  the  land  it- 
self. 

It  is  believed  that  no  better  plan  exists  for  preserving  at  every 
stage  of  the  title  the  true  interests  of  the  parties,  than  by  reduc- 
ing them,  at  every  step,  to  a  common  denominator.  Should  an}' 
of  the  parties  in  interest  b}'  inadvertence,  mistake  or  design,  con- 
vey more  than  his  or  her  respective  share,  or  intending  to  convey 
all,  should  convey  less,  the  error,  mistake  or  fraud  is  instantly 
detected,  and  the  confusion  which  necessarily  must  prevail  in 
subsequent  conveyances,  will  not  serve  in  the  slightest  to  distract 
the  attention  of  counsel  or  set  him  trying  to  reconcile  the  irrecon- 
cilable by  making  six  go  into  four. 

At  the  present  time  corporations  have  largely  taken  the  place 
of  partnerships  in  many  lines  of  trade.  As  a  result,  the  ques- 
tions that  frequently  arise  with  respect  to  undivided  ownerships 
in  the  earlier  stages  of  title  will  not  occur  in  its  later  develop- 
ment. But  formerlj'  partnerships  were  the  common  methods  of 
conducting  business  enterprises,  and  in  the  devolution  of  many 
titles  the  diverse  interests  of  the  partners  must  be  traced  and  care- 
fully analyzed.  As  an  illustration,  take  the  case  of  a  manufactur- 
ing site  in  a  city.  In  the  course  of  business,  many  partners  come 
and  go.  Some  own  large  interests,  some  small.  They  trade  among 
themselves  and  purchase  interests  from  each  other.  All  the  in- 
terests are  undivided.  The  purchasers  buy  interests  in  the  busi- 
ness, but  incidentally  they  purchase  corresponding  interests  in 
the  real  estate  as  well.    It  will  take  but  a  short  time  to  thoroughly 


§  600]  OPINIONS  OF  TITLE.  627 

complicate  such  a  title,  as  a  demonstration  will  show.  Suppose 
the  abstract  revealed  substantially  the  following  facts: 

Nos.  1  to  5  show  a  conveyance  from  the  government,  and  a  regu- 
lar investure  of  title  with  unbroken  chain  to  A.  B. 

No.     6.     A  subdivision  by  A.  B.     (Now  trace  one  lot.) 

No.     7.     A.  B.  to  C.  D.,  undivided  one  half. 

No.     8.     C.  D.  to  E.  F.,  undivided  one  fourth. 

No.     9.     E,  F.  to  G.  H.,  undivided  one  eighth. 

No.  10.     A.  B.  to  G.  H.,  undivided  one  half. 

No.  11.     C.  D.,  E.  F.  and  G.  H,,  a  mortgage  to  0. 

No.  12.     C.  D.  to  E.  F,,  undivided  one  half  of  one  half. 

No.  13.     C.  D.  to  I.  K.,  undivided  one  half  of  one  half. 

I.  K.,  the  last  grantee,  now  desires  to  have  his  title  examined 
with  the  result  shown  in  the  following  analysis.  This  analysis 
takes  no  note  of  errors,  but  is  simply  to  separate  and  keep  dis- 
tinct the  various  ownerships: 

ANALYSIS  OF  TITLE, 
to 
Lot  6,  Block  Jf2,  original  Plat  of  the  City  of  Kenosha,  Wis., 
as  shown  hy  the  annexed  abstract.     The  numbers  correspond 
to  the  numbers  of  the  removes  as  shown  in  the  abstract. 

The  ownership   of  said   lot  after  each   of  the   conveyances 
mentioned  in  said  abstract  was  as  follows: 

1     Numbers  1  to  5  show  regular  investure  of  title  in  A.  B. 
to  No..  6  a  subdivision  by  him.  Lot  6  being  shown  on 

6  plat  of  such  subdivision. 

7  ^-gj  ]       All.  Sept.  1,1858. 

8  A.  B.,  J  =  i  ) 

C.  D.,  i  =  i  [       All.  Dec.  13,  1858. 

E.  F.,  i  =  i  ) 

9  A.  B.,  J  =  |  1 

E.F:A  =  t  I       ^"-  Feb.  U.  1859. 

10  C.  D.,  i=i  I  ) 

E.  F.,  i=  \  i      All.  May  10,  1859. 

O.  H.,  J  and  J  =  i  ) 

1 1  Mortgage. 

12  E.  F.,  iandi  =  |  j       All.  Aug.  27.  1859. 


G.B.,%:=  i  )  Suhj.   to  mortgage. 

E.  F.,  i  =  i 
I.    K.,  \  —  \ 


13     E.  F.,  1  =  1  )       j^ii  g„^  J  excess.  Jan.  9,  1860. 

Gf.  ff.,  I  — g  J  2Vo   title   in  I.   K. 


628  ABSTRACTS   OF    TITLE.  [§  600 

The  t'oregoiiij^  illuslration  is  luot'ssarily  brief  aiicl  simple.  In 
praetiee,  iiiiuli  more  difficult  problems  are  presented,  as  where 
the  abstract  consists  of  from  forty  to  fifty  removes,  each  one  of 
fractional  interests,  and  not  in  tlie  easily  understood  parts  shown 
in  tlie  example,  but  of  ninths,  tifteenths,  etc.,  until  the  chain 
presents  one  bewildering  maze  of  diverse  fractional  interests.  In 
no  other  way  known  to  the  writer  can  these  unevenly  balanced  in- 
terests be  harmonized  and  presented  in  tangible, shape  than  by  the 
method  of  reduction  above  indicated.  Counsel  can  then  see  at  a 
glance  the  actual  interest  of  every  owner  at  every  stage  of  the 
title.  He  can  tell  if  any  have  conveyed  more  than  they  possessed, 
as  well  as  whether  any  interests  yet  remain  in  parties  who,  suppos- 
ing they  had  divested  themselves  of  all  title,  no  longer  claim  owner- 
.ship;  and  the  furtlier  fact,  in  whom  the  present  title  of  the  prem- 
ises rests,  and  the  extent  of  the  owncrehip  of  each  person. 

Thus,  in  the  example,  I.  K.  took  nothing  by  his  deed,  yet  suppos- 
ing that  he  had  in  time  purchased  other  interests,  and  bought  and 
.sold  from  and  to  others  of  the  present  parties,  as  well  as  new  parties 
who  subsequently  came  in,  this  surplus  one  fourth,  or,  as  it  might 
be  in  actual  experience,  one  sixteenth,  or  even  a  smaller  interest, 
or  a  fractional  part  of  a  fractional  part,  would  have  become 
strangely  blended  with  the  legitimate  interest.  However  correct 
the  opinions  of  Mr.  Sugden  in  respect  to  note  taking  on  the  peru- 
sal of  English  abstracts,  it  must  be  apparent  that  notes  of  some 
kind  can  not  be  well  dispensed  with  under  the  American  system, 
and  of  all  the  devices  to  trace  title,  none  can  compare  in  simplicity 
and  thoroughness  with  the  simple  "analysis"  above  presented." 

18  Mr.  Greenwood,  an  English  tendant  term  of  years  on  a  separate 
writer  on  conveyancing,  says  he  sheet  of  paper.  All  this  may  be  done 
"has  found  it  a  convenient  course  in  very  briefly;  it  is  only  necessary  to 
perusing  an  abstract  to  take  a  sheet  make  a  note  in  the  margin  opposite 
of  paper  with  a  double  margin  and  any  particular  clause  or  matter,  in 
insert  the  date  of  the  deed  in  the  order  that  attention  may  be  readily 
left  hand  margin,  and  on  the  oppo-  called  to  it  afterward,  as  perhaps 
site  side  put  such  part  of  the  deed  the  next  or  a  subsequent  deed  may 
as  is  necessary  to  show  the  devolu-  have  the  effect  of  disposing  of  the 
tion  of  the  title  and  any  special  point ;  and  should  this  be  so,  it  is 
clauses  or  stipulations,  leaving  the  a  good  plan  to  insert  a  note  in  the 
right  hand  margin  for  notes  and  margin  of  the  analysis  under  the  de- 
queries.  It  may  sometimes  be  con-  feet  previously  noted,  and  thus  many 
venient  to  keep  the  devolution  of  of  the  points  it  has  been  found  neces- 
the  legal  and  equitable  estates  sepa-  sary  to  raise  will  be  disposed  of,  and 
rate.  This  will  depend  on  the  title ;  those  not  cleared  up  will  form  the 
but  it  is  always  the  best  course  in  material  for  requisitions  on  the 
perusing  an  abstract  to  show  the  title."  Greenwood's  Conveyancing 
devolution    of    the    title    to    any    at-  (6th   Ed.),  46. 


§  602]  OPINIONS  OF  TITLE.  629 

§  601.  Analytical  Chains.  Even  when  the  title  is  not  compli- 
cated by  a  niiiltiplicit}-  of  small  ownerships,  if  it  be  long  drawn 
out,  that  is,  extending  over  a  long  period  of  years  and  passing 
tlirough  many  hands,  some  kind  of  chain  is  generally  of  material 
assistance  in  keeping  the  course  of  title  prominently  before  the 
examiner,  and  prevents  frequent  recurrence  to  parts  of  the  abstract 
that  have  already  been  passed  over.  This  can  be  fairly  accom- 
plished by  an  analytic,  or  in  one  sense  synthetic,  chain,  showing 
all  the  conveyances  and  their  connection  with  each  other.  When- 
ever an  adverse  title  intrudes,  this  chain  will  be  a  great  help,  both 
in  keeping  the  titles  separate  and  in  showing  their  general  course, 
and,  if  that  event  occurs,  their  ultimate  union.  This  chain  may  be 
prepared  and  used  in  connection  with  the  analysis  of  title  described 
in  the  last  section,  or  it  may  be  compiled  on  a  separate  sheet,  and 
each  used  to  supplement  the  other.  In  this  manner  the  title  is  vir- 
tually visualized  and  the  labor  of  counsel  materially  lightened. 

The  chain  may  be  constructed  in  any  manner  that  will  best  serve 
to  accomplish  the  desired  purpose,  but  a  very  simple  method  is  to 
make  a  geometrical  diagram,  the  instruments  being  represented  by 
quadrangles,  and  the  connections  and  course  of  title  by  straight 
lines.  This  method  has  the  merit  of  simplicity,  and  presents  at  a 
glance  the  general  course  of  title  in  a  very  clear  and  concise  man- 
ner. The  quadrangles  bear  numbers  with  reference  to  the  abstract, 
and  may  be  further  distinguished  by  the  names  or  initials  of  the 
parties  and  the  dates  of  transfer.  As  a  mechanical  assistance  in 
making  this  analysis  a  rubber  stamp  may  be  employed  for  narking 
the  squares,  the  specific  matter  being  filled  in  with  a  pen. 

A  chain  presenting  few  difficulties  might  be  made  somewhat  in 
the  manner  shown  on  the  following  page.  In  this  example  the  dates 
are  omitted,  but,  when  this  form  of  analysis  is  the  only  method 
employed,  it  is  suggested  that  they  be  inserted. 

§  602.  Sketch  Maps.  The  great  aid  derived  from  sketch  maps 
has  several  times  been  alluded  to  during  the  progress  of  this  work, 
and  in  all  cases  of  "snarls"  in  the  description  of  land,  as  well  as 
in  keeping  counsel  posted  on  the  relative  dimensions  of  the  prop- 
erty conve^'cd  at  each  successive  remove,  they  are  invaluable.  Their 
aid  is  more  frequently  invoked  in  abstracts  of  what  are  popularly 
termed  "agricultural  lands,"  or  lands  which  are  still  referred  to 
hy  the  descriptions  furnished  by  the  government  surveys,  but  they 
will  be  found  equally  useful  in  tracing  title  to  all  land  sold  by 
metes  and  bounds,  and  which  has  never  been  the  subject  of  formal 
subdivision  into  blocks  and  lots. 


630 


ABSTRACTS   OP    TITLE. 


ANALYSIS  OF  TITLE 
to 

Section  10,  T.  1  N.,  R.  23,  E. 


ORIOmXL  TITLE. 


U.  S.  to  A 


2 

A  to  B. 


3 

BloC. 


4 

CtoD. 


DtoG  Unci  H. 


Dto  E  Und  H. 


8 
EtoF  Und  %. 


6-9 
CtoH  Und  Vt. 
Fto  H     ..     .. 


11 

Slate  to  I. 


I  to  J. 


13 

ytoK. 


14 
KtbL. 


10-15 
HtoM-LtoM. 


16 
M  to  N. 


§  603]  OPINIONS    OF    TITLE.  631 

To  successfully  employ  these  maps,  it  is  necessary  ttiat  coun- 
sel should  possess  a  little  knowledge  of  surveying  and  understand 
the  use  of  a  protractor  and  a  few  other  simple  instruments.*^  A 
tracing  of  the  government  survey  will  be  found  very  convenient 
in  air  examinations,  and  if  counsel  is  unable  to  procure  such  trac- 
ing he  should  request  the  examiner  to  furnish  a  sketch  of  the 
survey  in  connection  with  the  abstract.  In  like  manner,  should 
he  feel  inadequate  to  the  task  of  preparing  sketches  of  the  prop- 
erty, arrangements  should  be  made  with  the  examiner  to  furnish 
them.  In  no  case  should  he  dispense  with  their  services  unless 
he  thoroughly  understands  the  condition  of  the  property  both 
topographicall}'  and  with  reference  to  its  superficial  measure- 
ments, and  in  every  case  where  it  can  be  done,  the  sketches  should 
be  made  by  himself  rather  than  by  an  assistant,  as  the  work  of 
figuring  out  the  dimensions,  tracing  the  courses,  and  locating  the 
monuments  is  of  incalculable  value  in  arriving  at  a  proper  con- 
clusion and  a  thorough  understanding  of  the  "lay  of  the  land." 

The  maps  or  sketches  should  be  preserved  with  the  analysis 
and  other  memoranda,  or  turned  over  to  the  client  in  connection 
therewith  if  such  should  be  the  understanding.  In  case  they  are 
given  to  the  client  the  particular  tracts  under  consideration  should 
be  colored  or  shaded,  to  distinguish  them  from  other  parts  of  the 
map,  and  the  dimensions,  whenever  practicable,  should  be  marked 
on  the  lines  or  courses. 

§603.  Preservation  of  Memoranda.  "It  is  desirable,"  says 
Mr.  Lee,^®  "that  the  purchaser,  if  his  contract  is  completed, 
should  carefully  preserve  not  only  the  abstract  itself,  but  all 
queries  and  objections,  with  the  answers  or  statements  made  re- 
specting the  title,  as,  after  a  lapse  of  time,  these  observations  and 
answers  may  of  themselves  be  of  some  weight  in  determining 
future  questions."  The  reader  will  understand  however,  that 
answers  and  statements  made  in  response  to  queries  and  objec- 
tions, play  a  far  more  important  part  in  the  acceptance  of  Eng- 
lish titles  than  they  possibly  could  in  the  matter  of  American 
titles.  The  statements  are  signed  by  solicitors  or  parties  making 
them,  and  are  regarded  for  certain  purposes  as  a  part  of  the 
abstract  to  which  they  are  usually  annexed. 

19  Mr.   Cunven   recommends   only  a  with    which,    by    means    of   it,    links, 

semi-circular    protractor,    a    pair    of  being  the  hundredth  parts  of  a  chain, 

dividers,  and  a  scale  of  equal  parts.  can    be    measured.      See    Curwcn    on 

A  scale  divided  into  fiftieth  parts  of  Absts.  21. 

an  inch  he  recommends  as  most  con-  20  Lee  on   Absts.   *  3. 
venient,  on  account  of  the  accuracy 


632  ABSTRACTS   OF    TITLE.  [§  603 

Under  our  system  the  only  memoranda  that  could  be  of  material 
value  to  the  i)urehaser  would  consist  of  the  analysis  of  the  ab- 
stract, or  of  the  title,  and  these,  when  properly  and  carefully 
made,  wouhl  undoubtedly  be  a  desirable  acquisition  and  well 
worthy  of  preservation.  They  would  not  only  be  of  great  assist- 
ance to  the  purchaser  by  enabling:  him  to  peruse  the  abstract  in- 
telligibly at  his  leisure,  but  would  also  tend  to  materially  reduce 
the  expense  of  subsequent  examinations.  But,  being  the  private 
memoranda  of  counsel,  he  would,  of  course,  be  under  no  obliga- 
tion to  deliver  his  notes  to  the  client,  however  valuable  they  might 
be,  as  his  opinion  is  all  that  is  asked  and  presumably  all  that  is 
paid  for.  The  methods  by  which  he  arrived  at  such  opinion,  or 
the  instrumentalities  employed,  are  his  own  property  to  be  given 
or  withheld  as  he  may  see  fit.  The  writer  suggests,  that  in  all 
cases  they  be  retained  by  counsel,  as  not  infrequently  occasions 
for  their  consultation  will  subsequently  occur.  In  his  own  prac- 
tice he  has  found  it  convenient  to  keep  a  blank  book  in  which  has 
been  preserved  his  notes  of  examinations.  On  the  left  hand  page 
is  placed  the  analysis  of  the  abstract  and  on  the  opposite  page 
the  objections,  queries  and  requisitions  for  further  information, 
together  with  his  notes  and  observations.  lAHienever  questions 
have  afterward  arisen  with  respect  to  the  opinion  rendered  on  the 
title,  the  nuitters  thus  preserved  have  been  found  of  very  material 
assistance.  Another  advantage  will  be  found,  in  the  aid  such 
memoranda  may  afford  in  subsequent  examinations  of  the  same 
property  or  parts  thereof. 

« 

§  604.  Parsing  the  Title.  In  examining  a  title,  counsel  is  fre- 
quently compelled  to  admit  evidence  which,  although  it  may  be 
satisfactory  as  a  proof  of  the  fact,  yet  would  not  be  received  in 
a  court  of  justice;  for  example,  affidavits  as  to  facts  disclosed  in- 
ferentiall.N',  and  to  prove  deaths,  marriages,  etc.  Such  affidavits, 
though  inadmissible  under  the  rules  of  evidence,  arc  valuable  from 
the  reason  that  they  show  that  living  jiersons  can  at  the  time 
establish  the  facts  therein  recited.  On  the  other  hand,  in  receiv- 
ing evidence  admissible  at  law,  counsel  is  compelled  to  submit  the 
latter  to  a  severer  test  than  it  would  be  subject  to  upon  an  ordi- 
nary trial,  for  it  is  not  a  contest  between  two  litigants  which  has 
the  better  title,  but  a  calm  consideration  by  a  man  in  his  cham- 
bers, whether  the  seller's  title  is  a  safe  one  against  all  the  world, ^^ 

2iSugd.  V.  &  P.  16. 


§605] 


OPINIONS   OF    TITLE. 


633 


§  605.  What  Constitutes  a  Valid  Title.  In  the  absence  of  any 
stipulations  to  the  contrary  the  vendor,  in  every  contract  of  sale, 
impliedly  undertakes  to  furnish  to  the  purchaser  a  marketable 
title.^'^  It  is  for  the  purpose  of  determining  this  quality  in  regard 
to  the  proffered  title  that  counsel  is  asked  to  investigate  it  prior 
to  the  consunmiation  of  the  sale.  "I  am  of  the  opinion  that  John 
Smith  possessed  a  good  and  valid  title,"  etc.,  is  a  familiar  ex- 
pression in  attorney's  certificates  of  opinion,  and  they  are  the 
controlling  words  that  induce  the  purchaser  to  accept  the  vendor's 
deed.  Therefore  the  inquiry,  what  is  a  "good  and  valid"  title 
is  pertinent  in  this  connection.  It  may  be  briefly  stated  in  an- 
swer, tliat  the  title  disclosed  should  extend  to  show  a  full  and 
perfect  right  to  property  and  present  possession  vested  in  the 
vendor.^^  It  must  also  embrace  the  entire  estate  or  interest  sold,*^* 
and  that  free  from  the  lien  of  all  burdens,  charges,  or  incmn- 
branees,^^  and  should  not  only  be  free  from  litigation,^^  but  from 
l)alpable  defects  ^'  and  grave  doubts.^'  It  should  consist  of  both 
the  legal  and  the  equitable  titles,^^  and  be  fairly  deducible  of 
record.^"     It  may  still  be  a  valid  title,  even  though  charged  with 


22  The  remarks  of  an  eminent  Eng- 
lish Avriter  upon  this  subject  may 
not  be  uninteresting.  Mr.  Lee  says: 
' '  Under  the  term  purchaser,  the  law 
generally  includes,  a  mortgagee,  and 
also  a  lessee,  to  the  extent  of  their 
respective  interests;  to  that  extent 
they  are  purchasers;  but  the  rules  of 
law  and  the  evidence  of  title,  as  they 
relate  to  a  lessee,  are  very  different 
from  the  rules  and  the  evidence  re- 
lating to  a  purchaser  in  the  common 
acceptation  of  the  term,  as  likewise  to 
a  mortgagee ;  but  the  title  and  evi- 
dence usually  required  on  behalf  of  a 
purchaser  and  a  mortgagee  are  near- 
ly similar.  Some  books  indeed  have 
stated  that  a  purchaser,  commonly 
so  called,  should  require  the  strictest 
evidence  of  title,  because  all  his  in- 
terest depends  upon  his  power  of 
making  out  a  strict  title  on  a  future 
sale;  and  that  a  mortgagee,  seldom 
advancing  money  to  the  full  value 
of  the  estate,  may  well  dispense  with 
the  most  complete  evidence  of  title, 
as  an  imperfect  title  might  probably 
fetch    the    amount    of    his    advances. 


Others  say  that,  as  a  mortgagee  can 
never  gain  anything  beyond  the 
amount  of  the  money  lent,  he  ought 
to  run  no  risk  of  losing  that,  not 
even  the  slightest;  that  a  purchaser 
takes  the  estate  for  better  and  for 
worse,  and  therefore,  rather  than  re- 
ject a  title  for  want  of  sufficient  evi- 
dence, he  may  be  sometimes  advised 
to  take  it,  and  speculate  for  a  rise 
in  value."     Lee  on  Ab.   (Eng.)   *  18. 

23Delevan  v.  Duncan,  49  N.  Y. 
485;  Davis  v.  Henderson,  17  Wis. 
105. 

24  Taft  V.  Kessel,  16  Wis.  273. 

26  Roberts  v.  Bassett,  105  Mass. 
407  ;  Jones  v.  Gardner,  1 0  Johns.  266 ; 
Davidson  v.  Van  Pelt,  15  Wis.  341. 

26  Spcakman  v.  Forepaugh,  44  Pa. 
St.   363. 

27  Smith  v.  Robertson,  23  Ala.  312; 
Holland  v.   Holmes,  14  Fla.  390. 

28Gans  V.  Renshaw,  2  Barr  (Pa.) 
34;  Scott  V.  Simpson,  11  Heisk. 
(Tenn.)    310. 

29  Taft  V.   Kessel,   16  Wis.   273. 

30  Martin  v.  .Fudd,  81    111.  488. 


634  ABSTRACTS   OF    TITLE.  [§  605 

incumbrances,^^  but  in  that  event  the  opinion  should  discriminate 
and  the  title,  if  otherwise  unimpaired,  must  be  certified  as  "sub- 
ject to  the  lien,"  etc.,  of  the  incumbrance.  The  terms  of  the  con- 
tract of  sale  will,  in  many  instances,  determine  the  question  of 
title  when  raised,  but  ordinarily,  while  a  purchaser  will  not  be 
compelled  to  accept  a  title  palpably  defective,  he  can  not  justify 
his  refusal  to  accept  by  mere  captious  objections,  nor  is  it  suffi- 
cient for  him,  when  the  jurisdiction  of  a  court  is  invoked  to  com- 
pel him  to  perform  his  contract,  merely  to  raise  a  doubt. 

A  defect  in  a  record  title,  will,  under  most  circumstances,  fur- 
nish a  defense  to  a  purchaser,  particularly  where  it  affects  the 
value  of  the  property  or  would  interfere  with  its  sale,  and  thus 
render  it  uumarketable,^^  but  there  is  no  inflexible  rule,  in  the 
absence  of  stipulations  to  the  contrary,  that  a  vendor  must  fur- 
nish a  perfect  title  of  record,  and  it  has  frequently  been  held  that 
defects  in  the  record  or  paper  title  may  be  removed  by  parol  evi- 
dence.*^ Where,  however,  the  title  depends  upon  a  matter  of 
fact  which  is  not  capable  of  satisfactory  proof,  or,  if  capable  of 
that  proof,  yet  is  not  so  proved,  the  title  is  not  marketable  and 
the  purchaser  is  not  obliged  to  take  it. 

A  title,  to  be  valid,  need  not  necessarily  be  deducible  of  rec- 
ord, for  a  prescriptive  title  may,  under  proper  conditions,  be  as 
strong  as  a  title  by  grant,**  yet  such  titles,  unless  there  has  been 
a  continuous  holding  for  at  least  twenty  years,  are  always  liable 
to  defeat  from  undisclosed  defects,  and  even  after  the  expiration 
of  such  period  they  may  still  be  open  to  attack  through  claims 
by  minor  heirs,  or  persons  under  disability. 

Again,  a  valid  title  should,  as  is  self-evident,  be  free  from  latent 
defects  or  taint  of  fraud;  yet  this  is  something  that,  from  its 
very  nature,  must  frequently  pass  undetected,  even  by  the  exer- 
cise of  the  greatest  prudence.  As  a  rule,  however,  where  the  legal 
title  is  vested  in  the  vendor,  and  there  is  nothing  appearing  from 
which  purchasers  can  know  that  there  has  been  any  fraud  in  his 
acquisition  of  the  title,  or  anj'  invalidity  in  any  of  the  deeds  in 
his  chain  of  title,  they  will  be  protected  in  the  purchase.** 

§  606.  Flaws.     This  term  may  be  aptly  used  to  describe  an 
apparent  gap  or  break  in  the  chain,  which,  when  occurring,  con- 
si  Caal    V.    Higgins,    23    N.    J.    Eq.  34  McNab  v.  Young,  81  111.  11. 
308.  36  Sherman   v.   Kane,  86   N.   Y.   57. 
32  Shriver  v.  Shriver,  86  N.  Y.  576. 
83  Hellreigel  v.  Manning,  97  N.  Y. 
56. 


§  606]  OPINIONS    OF    TITLE.  635 

stitutes  in  many  cases  an  insurmountable  impediment.  A  requisi- 
tion must  in  all  cases  be  made  for  the  missing  links,  whether  the 
interruption  be  partial,  as  where  one  of  several  persons  shown 
to  possess  a  unity  of  interest  fails  to  convey,  or  entire,  as  where 
no  privity  of  title  is  shown  to  exist  between  present  and  past 
owners.  Where  the  original  title  fails,  and  requisitions  for  the 
purpose  of  showing  connection  are  returned  unsatisfied,  the  title 
asserted  becomes  adverse  to  the  original  title  and  necessary  in- 
quiries in  pais  must  be  made  to  show  a  valid  title  by  adverse  pos- 
session. 

An  apparent  break  in  the  chain  often  occurs  in  case  of  descents, 
the  estate  of  the  intestate  never  having  been  settled  in  probate; 
and  when  the  only  heirs  are  married  women,  and  a  conveyance 
is  subsequently  made  by  them,  if  no  description  of  the  person  or 
capacity  is  given,  the  break,  upon  the  record,  will,  of  course,  be 
absolute.  "When  a  grantee  under  an  unrecorded  land  contract 
has  gone  into  possession,  but  no  deed  has  ever  been  made,  the  same 
state  of  facts  exists  in  respect  to  conveyances  by  him.  Again,  and 
these  cases  are  by  no  means  uncommon,  simple  or  ignorant  people 
frequently  go  into  possession  under  deeds  which  they  never  cause 
to  be  recorded,  and  this  apparently  breaks  the  continuity  of  in- 
terest and  title.  Requisitions,  in  many  instances,  will  suffice  to 
discover  the  missing  evidence,  but  when  they  can  not  be  found, 
possession  and  claim  of  title  under  the  statute  of  limitations  must 
be  relied  on. 

A  serious  defect  of  the  character  under  consideration  will  fre- 
quently be  found  at  the  very  initiation  of  the  title,  the  abstract 
showing  only  the  original  entry  at  the  government  land  office, 
supplemented,  possibly,  by  the  local  record  of  the  receiver's  dupli- 
cate receipt.  Now  it  is  immaterial  how  long  the  premises  may 
have  remained  in  private  occupancy  nor  through  how  many  hands 
they  may  have  passed ;  the  title,  in  such  a  case,  is  simply  an  equity, 
for  no  limitation  runs  against  the  government.  Yet  such  defects 
are  very  common.  From  a  very  early  day  in  the  history  of  the 
public  land  system,  settlers  and  purchasers  seem  to  have  been 
strangely  indifferent  in  the  matter  of  securing  possession  of  the 
government  patents  for  their  lands,  and  in  hundreds  of  thousands 
of  instances  the  foundation  of  title,  as  exhibited  by  local  records, 
to  lands  purchased  from  the  government,  some  of  them  of  vast 
present  value,  is  merely  the  duplicate  receipt  above  alluded  to. 
Probably  this  indifference  has  arisen  chiefly  from  ignorance  on  the 
part  of  purchasers  that  a  patent  constitutes  the  only  positive  evi- 
dence of  the  transfer  of  title  from  the  government  to  the  individual, 


636 


ABSTRACTS   OF    TITLE. 


[§606 


but  wliatcvtT  may  bo  the  cause,  the  fact  exists,'^  and  it  should  be 
the  duty  of  every  attorney  exaniiniufr  a  title  to  see  that  this  vital 
link,  showing  tlv^  oripriual  derivation,  is  restored  whenever  it  is 
shown   1o  be  wanlinpr.^' 


§  607.  Clouds  Upon  Title.  In  the  examination  of  abstracts 
counsel  frequently  finds  minor  defects,  imperfect  descriptions;  in- 
valid instruments;  abortive  attempts  at  conveyance,  and  ineffective 
lerral  proceedinp^s,  which,  while  not  reaching  the  merits  of  the 
litle.  nor  yet,  in  many  cases,  casting  any  suspicion  upon  it,  still 
tend  in  a  measure  to  obscure  it.  These  defects  are  known  as 
"clouds  upon  the  title,"  and  it  is  the  duty  of  counsel  to  detect 
and  j)oint  out  such  defects  that  projier  ste})s  may  be  taken  to 
i-emove  them.  The  opinion  should  properly  discriminate  between 
deeds  which  are  defective  merely,  or  which  might  be  made  the 
foundation  of  a  valid  title  in  connection  with  other  circum- 
stances, and  those  which  are  absolutely  void,  for  the  legal  effect 
of  the  two  classes  is  not  the  same.  As  a  general  rule,  a  deed, 
lien,  charge  or  incumbrance  of  any  kind,  to  east  a  shadow  upon 
title,  so  as  to  give  the  owner  relief  in  equity,  must  be  one  that 
is  regular  and  valid  upon  its  face,  but  is,  in  fact,  irregular  and 
void  from  circumstances  which  have  to  be  proved  by  extrinsic 
evidence. ^8  If  the  invalidity  plainly  appears  on  the  face  of  the 
instrument,^®  or,  although  not  apparent  on  the  writing,  if  it  is 
shown  by  any  of  the  preliminaries  which  attend  it,  or  in  any 
of  the  links  which  connect  it  with  the  title,"  so  that  no  lapse  of 


36  It  would  seem  from  the  report 
of  the  Commissioner  of  the  General 
Land  Oflfice  for  the  year  1875,  that 
at  that  time  there  were  remaining 
in  the  files  of  the  general  and  loeal 
land  offices  nearly  two  millions  of 
uncalled  for  patents,  covering,  prob- 
ably, not  less  than  150,000,000  acres, 
no  small  proportion  of  which  were 
lands  purchased  of  the  government 
more  than  a  half  centurj'  before,  and 
lying  in  the  older  States  of  Ohio, 
Indiana,   Illinois,   etc. 

37  The  initial  statements  taken 
from  the  Government  Tract  Book  will 
always  furnish  a  clue  to  a  break  of 
this  kind,  and  a  certified  copy  of  the 
patent  can  be  obtained  by  any  per- 
son showing  himself  to  be  entitled 
to  it. 


38  Murphy  v.  INlayor,  etc.,  of  Wil- 
mington, 6  Houst.  (Del.)  108;  Crooke 
v.  Andrews,  40  N.  Y.  547 ;  Sanxay 
V.  Hunger,  42  Ind.  44;  Davidson  v. 
Seegar,  15  Fla.  671.  But  see,  Eig- 
don   V.   Shirk,   127    Til.   411. 

39  R.  R.  Co.  V.  Schuyler,  17  N.  Y. 
509;    Sloan   v.   Sloan,  25   Fla.   53. 

40  Fonda  v.  Sage,  48  N.  Y.  173; 
Griswold  v.  Fuller,  33  Mich.  268; 
as  where  title  is  deduced  through  a 
judicial  sale,  where  the  proceedings 
which  were  the  basis  of  such  sale, 
and  upon  which  the  validity  of  the 
adverse  title  depends,  are  shown  to 
be  void  for  jurisdictional  defects: 
Florence  v.  Paschal,  50  Ala.  28 ; 
Hatch  V.  City  of  Buffalo,  38  N.  Y. 
276. 


§  008]  OPINIONS  OF  TITLE.  637 

time  nor  change  of  circumstances  can  weaken  the  means  of  de- 
fense, such  an  instrument  does  not,  in  a  just  sense,  even  cast  a 
cloud  upon  the  title,  or  diminish  the  security  of  the  owner  of 
the  land,*^  for  the  rule  is  well  settled  that  such  an  instrument 
can  work  no  mischief,  and  that  no  occasion  arises  for  equitable 
interference  for  its  removal  or  cancellation.*^ 

It  is  not  recommended,  however,  that  everj-  matter  appearing 
in  the  abstract,  and  shown  thereby  to  be  irregular  and  void  upon 
its  face,  be  disregarded  for  that  reason,  for  the  legitimate 
province  of  the  opinion  is  to  specifically  show  the  legal  effect  of 
aU  instruments  or  proceedings  that  to  the  non-professional  reader 
may  seem  suspicious,  and,  by  pointing  out  such  matters  and  show- 
ing their  invalidity,  to  allay  his  fears  and  confirm  his  confidence 
in  the  title.  It  is  for  this  ver}'  purpose,  that  intending  purchasers 
seek  the  aid  of  counsel,  and  every  doubt  or  question  that  may 
arise  to  the  legal  mind  should  find  expression  in  the  opinion. 
Many  questions  of  this  character,  which  formerly  could  be  sum- 
marily disposed  of,  now  require  a  very  different  treatment,  from 
the  fact  that  in  a  large  number  of  States  the  statute  has  made 
certain  classes  of  deeds  and  conveyances  prima  facie  evidence  of 
the  facts  therein  recited,  and  not  only  of  their  own  validity,  but 
of  every  anterior  proceeding  necessary  to  constitute  such  valid- 
ity. Whenever  a  deed  is  primary  evidence  of  title  and  of  regu- 
larity in  the  prior  proceedings,  and  can  only  be  overcome  by 
proof  of  certain  facts  dehors  the  deed,  a  cloud  is  always  created,*^ 
for  though  the  instrument  is  really  void,  it  has  an  ostensible 
validity,  and  throws  a  doubt  upon  the  title,  and  not  only  can 
be  used  for  vexatious  purposes,  but  is  such  a  title  that,  if  asserted 
by  action  and  put  in  evidence,  would  drive  the  other  party  to 
the  production  of  his  own  title  in  defense.** 

§  608.  Inquiries  in  Pais.  Technically,  when  an  attorney  is 
called  upon  to  pass  the  title  to  land  under  a  given  state  of  facts 
as  presented  bj^  the  abstract,  he  is  not  supposed  or  presumed  to 
extend  his  investigations  beyond  what  is  directly  or  infercntially 
disclosed  therein.  The  absence  of  requisite  links  in  the  chain  of 
title  calls  for  inquiries  respecting  same,  but  the  existence  of  un- 
recorded   evidence,    or    of    equities    not    apparent    or    fairly    de- 

41 R.  R.  Co.  V.   Schuyler,  17  N.  Y.  43  Tilton    v.    R.    R.    Co.,    3    Sawyer 

599;   Bogert  v.  City  of  Elizabeth,  27        (C.  Ct.),  22. 
N.  J.  Eq.  568.  44  Lick  v.   Ray,  43   C'al.   83. 

42  Fonda   v.    Sage,    48   N.   Y.    173; 
Cohen  v.  Shard,  44  Cal.  29. 


638  ABSTRACTS   OF   TITLE.  [§  608 

duciblo,  do  not  legitimately  come  within  the  province  of  an  ex- 
amining counsel. 

It  is,  however,  strongly  recommended,  that  in  addition  to  the 
inquiries  and  requisitions  made  during  the  perusal  of  the  ab- 
stract, and  which  are  raised  by  the  disclosures  therein  made, 
a  further  inquiry  be  directed  to  the  present  possession  and  occu- 
pation of  the  land  under  examination.*'  A  due  observance  of 
this  suggestion  will  give  greater  stability  to  the  opinion,  and  may 
in  many  cases  prove  a  mild  preventive  of  a  bitter  law-suit.  A 
long  series  of  adjudicated  cases  confirm  the  doctrine  that  open 
and  exclusive  possession  of  land  affords  notice  of  the  claim  of 
the  person  so  in  possession,*^  and  a  purchaser  of  land  at  the  time 
adversely  held  by  another  who  does  not  inquire  of  the  party  in 
possession  as  to  his  title  or  right  of  occupancy,  will  not  be  con- 
sidered a  bona  fide  purchaser,  notwithstanding  he  may  have 
examined  the  registry  of  titles.*''  A  purchaser  of  land  who  ex- 
amines the  records  is  protected  by  them  as  far  as  they  can  pro- 
tect him.  but  he  necessarily  takes  the  risk  of  having  the  actual 
state  of  the  title  correspond  with  that  which  appears  of  record.*' 
The  registration  laws  are  designed  only  to  protect  purchasers 
against  latent  equities ;  hence,  unrecorded  conveyances  are  void 
as  against  subsequent  purchasers  without  notice,  and  while  in  a 
few  instances  courts  may  be  found  holding  strongly  against  the 
doctrine  of  constructive  notice  arising  from  possession  merely,*® 
though  admitting  such  to  be  competent  for  the  consideration  of 
a  jury  in  connection  with  direct  evidence  of  actual  notice,  the 
vast   preponderance   of   authority   sustains   the   principle   that    a 

45  The   importance   of   this   inquiry-  proof,  and  the  mere  production  of  a 

can    not    be    over-estimated    in    cases  deed,  without  more,  will  not  be  suf- 

where  a  long  interval  exists  between  ficient  to  establish  title, 

the   time   of    acquiring   title   and    its  46  Pritchard    v.    Brown,    4    N.    H. 

divesture   of   record.      In   some   cases  397 ;    Redden   v.   Miller,   65   111.   336 ; 

seven  years,  and  in  nearly  every  case  Maghee    v.    Robinson,    98    111.    458; 

twenty  years,  will  be  sufficient  to  bar  Pinney  v.  Fellows,  15  Vt.  525;  Hac- 

an  apparent  title  of  record  when  ad-  kctt    v.    Callender,    32    Vt.    97.      The 

verse  rights  have  been  acquired;  and  rule  is  the  same  both  at  law  and  in 

continuous  possession  is  almost  as  es  equity:      Griswold    v.    Smith,    10    Vt. 

sential   a    showing   as    unbroken    con-  554. 

tinuity   of   record    title.      In    fact,   in  47  Russell  v.  Swcczy,  22  Mich.  235; 

an  action  of  ejectment,  which  Ls  noth-  Warren  v.  Richmond,  53   111.  52. 

ing    more    than   an    action    to    try   a  48  Peck   v.   Clapp,   98   Pa.   St.    581. 

disputed  title,  the  fact  of  possession  49  Pomeroy    v.     Stevens,     11     Met. 

by  the  plaintiff  or  those  under  whom  244;  Glass  v.  Hurlbut,  102  Mass.  34; 

he   claims,   and    an    intrusion   by   the  Clark  v.  Bosworth,  51   Me.  528. 
defendant,  is  an  essential  part  of  the 


§  609]  OPINIONS   OP    TITLE,  639 

purchaser  from  the  record  owner  is  bound  to  notice  the  posses- 
sion of  another,  and  takes  subject  to  the  right  indicated  by  such 
possession.^® 

In  any  event  the  safe  course  is  to  make  the  inquiry,  for  the 
law  will  not  extend  its  protection  to  those  who  through  negli- 
gence or  inattention  suffer  an  advantage  to  be  taken  of  their 
credulity,  nor  will  it  afford  relief  to  those  who  neglect  to  examine 
and  by  personal  observation  ascertain  the  knowledge  of  those  facts 
of  which  they  are  presumablj^  conversant.  "It  is  not  to  be  sup- 
posed," says  Richardson,  C,  J.,  "that  any  man  who  wishes  to 
purchase  land  honestly,  will  buy  it  without  knowing  what  are 
the  claims  of  a  person  who  is  in  the  open  possession  of  it.  It  is 
reasonable,  if  men  buy  in  such  cases  without  inquiry,  that  they 
should  be  presumed  to  have  known  everything  which  they  might 
have  learned  upon  due  inquiry,"*^  "and  one  important  evidence 
of  title  to  an  improved  estate,"  continues  Shepley,  J.,  "is  the 
possession  of  it.  When  one  person  purchases  of  another  who  is 
not  in  possession,  he  is  put  upon  inquiry  into  the  cause  of  such 
apparent  defect  of  a  perfect  title. ' '  ^^  When  land  is  vacant  or 
unoccupied,  no  presumption  can  arise  against  the  legal  or  record 
title." 

§609.  Continued — Mechanics'  Liens.  It  has  been  held  in  a 
late  case,^*  that  a  party  purchasing  land  on  which  buildings  are 
in  process  of  erection,  having  knowledge  of  the  same,  is  bound  to 
make  inquiry  as  to  the  rights  of  parties  furnishing  materials  or 
performing  work  thereon,  and  that  such  person  is  charged  with 
constructive  if  not  actual  notice  of  their  lien.  Further,  that  a 
sale  of  property  after  the  lien  is  fixed,  to  one  cognizant  of  the 
fact,  gives  him  no  rights  as  against  the  lien.  This  is  in  con- 
sonance with  the  general  doctrine  on  the  subject  of  mechanics' 
liens,  which  provides  that  the  lien  shall  take  effect  from  the  time 

BOPinney  v.  Fellows,  51  Vt.  525;  Thompson  v.  Burhans,  79  N.  Y.  93; 
Eussell  V.  Sweezy,  22  Mich.  235;  Red-  Weir  v.  Lumber  Co.,  186  Mo.  388. 
den  V.  Miller,  95  111.  336;  Perkins  54  Austin  v.  Wohler,  5  Bradw.  (111. 
V.  Swank,  43  Miss.  349;  O'Rourke  v.  App.)  300.  A  mechanic  may  file  his 
O 'Conner,  39  Cal.  442;  Happin  v.  lien  against  the  person  who  held  the 
Doty,  25  Wis.  573;  Edwards  v.  legal  title  when  the  work  was  corn- 
Thompson,   71   N.   C.   177.  menced,  and  he   is  not  bound  to   in- 

61  Pritchard  v.  Brown,  4  N.  H.  quire  further  or  take  notice  of  any 
397;  Russell  v.  Ransom,  76  111.  168.  subsequent   conveyances   of  the   prop- 

62  Matthews  v.  Demerritt,  22  Me.  erty:  Fourth  Ave.  Bap.  Church  v. 
312.  Schreiner,  88  Pa.  St.  124. 

68  White    V.    FuUer,    38    Vt.    201; 


640  ABSTRACTS   OF    TITLE.  [§  609 

of  the  commencement  of  the  work,  and  that  no  sale  or  transfer 
thereafter  is  sufficient  to  divest  it."  It  follows,  therefore,  that  an 
in(iuiry  respectinjj  possible  liens  should  always  be  made  and  that 
the  attention  of  prospective  purchasers  should  be  directed  thereto. 
The  legislation  of  the  States  with  respect  to  the  lien  of  mechanics 
and  material  men  is  extremely  variant  and  laws  are  constantly 
being  altered  and  tinkered.  For  these  reasons  it  is  difficult  to 
formulate  rules  and  extra  vigilance  is  imposed  on  counsel  witli 
respect  to  changes  of  the  law  in  his  own  State. 

§  610.  Continued — Easements  and  Servitudes.  In  addition  to 
all  the  recoiiiiiu'ndations  heretofore  made,  it  is  further  suggested 
that  an  actual  inspection  of  the  premises  be  had  for  the  express 
purpose  of  ascertaining  whether  there  are  any  servitudes  resting 
upon  the  land  that  have  not  been  disclosed  by  the  abstract.  This, 
at  first  blush,  may  seem  an  unnecessary  and  useless  proceeding, 
yet  there  are  many  conditions  and  circumstances  that  not  only 
justify  such  a  course,  but  render  it  an  imperative  duty.  It  is  true 
that,  as  a  rule,  a  claim  for  an  easement  must  be  founded  upon  a 
grant  by  deed,  yet  an  easement  may  pass  by  implication,  when  its 
existence  is  necessary  to  the  enjoyment  of  that  which  is  expressly 
granted  or  reserved,  upon  the  principle  that  where  one  grants 
anything  to  another,  he  thereby  grants  him  the  means  of  enjoy- 
ing it,  whether  expressed  or  not.*^ 

This  is  well  illustrated  in  the  rule  of  the  common  law  which 
provides  that,  where  the  owmer  of  two  heritages,  or  of  one  heritage 
of  several  parts,  has  arranged  and  adapted  them  so  that  one  de- 
rives a  benefit  or  advantage  from  the  other  of  a  continuous  and 
obvious  character,  and  then  sells  one  of  them  without  making 
mention  of  these  incidental  advantages  or  burdens  of  one  in 
respect  to  the  other,  there  is,  in  the  silence  of  the  parties,  an  im- 
plied understanding  and  agreement  that  the  advantages  and  bur- 
dens, respectively,  .shall  continue  as  before  the  separation  of  the 
title." 

But  in  order  that  an  easement  should  pass  by  implication,  under 
the  grant  of  an  estate,  it  must  be  obvious  to  any  observer,  while 
an  apparent  sign  of  servitude  mu.st  be  impressed  upon  the  servient 

55Dunklee     v.     Crane,     103     Mass.  Dillman  v.  Hoffman,  38  Wis.  559. 
470;    Thielman  t.   Oarr,   75   111.   385;  67  Morrison    v.    King,    62    111.    30; 

Mehan  v.  Williams,  2  Dalv   (N.  Y.),  Lampman    v.    Milks,    21    N.    Y.    505; 

367.  .Tones  v.   Jenkins,   34   Md.   1,  and  see 

66  Lanier   v.   Booth,   50   Miss.   410;  Wash.   Easement,   58. 
Pingree  v.  McDuffee,  56  N.  H.  306; 


§  611]  OPINIONS    OF    TITLE.  641 

estate :  in  other  words,  the  marks  of  the  burden  must  be  open  and 
visible.^'  Where  these  conditions  exist,  their  effect  upon  the  ser- 
vient estate  is  frequently  productive  of  results  that  the  pur- 
chaser neither  anticipated  nor  intended,  but  of  which  he  might 
have  been  fully  apprised  had  proper  inquiry  and  examination 
been  made  prior  to  the  acceptance  of  the  title. 

The  foregoing  remarks  are  particularly  true  with  regard  to 
city  property  or  property  in  populous  neighborhoods,  where 
buildings  and  improvements  crowd  and  encroach  upon  each 
other,  ofttimes  disclosing,  upon  even  a  casual  inspection,  all  the 
marks  of  servitude,  and  thereby  charging  the  purchaser  with 
notice  of  their  existenee.^^  Where  any  doubts  exist  with  respect 
to  lines,  courses  or  dimensions,  a  survey  should  be  had  to  fix 
boundaries. 

§  611.  Continued — Homestead.  It  will  be  remembered  that  in 
several  of  the  States  the  right  of  homestead  is  a  special  estate  re- 
quiring a  special  release  to  divest,  and  in  other  States,  where  it 
is  regarded  merely  as  a  statutory  right  of  exemption,  certain  for- 
malities are  expressly  necessary  to  a  waiver.  Where  such  laws 
obtain,  and  the  deeds  make  no  reference  to  the  homestead,  even 
though  the  possession  of  the  land  is  shown  to  be  in  the  parties  con- 
veying, a  further  inquiry  should,  it  would  seem,  be  made  with 
respect  to  the  character  of  the  possession,  and  a  special  release 
or  waiver  of  the  homestead  right  should  be  obtained  when  such  in- 
quiry expressly  or  impliedly  discloses  a  homestead  occupancy.^** 

68  Butterworth  v.  Crawford,  46  N.  to  the  expense  of  the  party  wall, 
Y.  349.  and  the  latter  gave  notice  of  an  in- 

69  So  held  where  the  owner  of  lands  tention  to  close  up  the  flue,  where- 
divided  the  same  east  and  west  and  upon  the  plaintiif  filed  his  bill  to 
erected  a  building  on  the  north  part,  enjoin  the  act:  Ingals  v.  Plamondon, 
placing  the  south  wall  half  on  each  75  111.  118. 

side,    with    a    flue    projecting    eight  60  Printed  blank  forms  of  convey- 

inches   on   the    south   lot,   which   was  ance    generally   contain   a  homestead 

used  to  carry  off  the  smoke  from  a  waiver,   and   this   is   also   a   part   of 

furnace  permanently  attached  in  the  the    form    prescribed    for    statutory 

building,  the  flue  being  necessary  to  deeds,  but  where  forms  are  draughted 

the  use  of  the  furnace;  the  flue  stood  for   special    occasions    the   waiver   is 

exposed  to  view  with  chimney  there-  generally  omitted  when  the  lands,  in 

on,    and    the    owner    sold    the    north  fact,  are  not  occupied  as  homesteads, 

portion   of   the  lot   to   the   center   of  In  subsequent  examinations  this  course 

the    south    wall,    with    the    building  frequently   raises   embarrassing   ques- 

thereon,   to   the  plaintiff,   and   after-  tions  and  the  better  plan  is  to  insert 

ward  sold  the  south  half  of  the  lot  the  waiver  in  all  deeds  regardless  of 

to    the    defendant,    who    contributed  the  actual  facts. 
Warvelle  Abstracts — 41 


642  ABSTRACTS   OF    TITLE.  [§  612 

§  612.  Printed  Copies.  When  large  subdivisions  are  made  for 
general  sale  to  purchasers  of  small  lots,  it  has  now  become  cus- 
tomary to  duplicate  tiie  original  abstract  to  the  entire  tract  by 
printed  copies.  This  is  done  to  avoid  the  expense  of  a  separate 
search  for  eacii  lot  of  the  subdivision  as  well  as  a  scrivener's  copy 
of  the  original,  and  it  is  claimed  tliat  such  printed  copies  are  far 
more  i-eliable  and  trustworthy  tlian  where  a  written  copy  is  made 
from  the  original  for  every  transfer.  Where  the  work  is  per- 
formed conscientiously  and  carefully  this  is  probable  true,  yet  the 
great  majority  of  the  profession  have  set  their  faces  strongly 
against  the  use  of  printed  copies  and  many  lawyers  refuse  to  pro- 
nounce upon  a  title  disclosed  by  them,  unless  the  original  is  also 
produced  at  the  same  time  for  comparison  and  inspection.  This 
strongly  grounded  prejudice  arises  from  the  fact  that  the  temp- 
tation for  the  interpolation  of  foreign  matter,  or  the  suppression 
or  expurgation  of  original  matter  is  so  great,  that  unscrupulous 
parties  not  infrequently  do  not  hesitate  to  resort  to  such  expe- 
dients to  conceal  the  defects  of  imperfect  title. 

A  printed  copy,  if  made  by  an  honorable  and  responsible  pei-- 
son,  who,  at  the  close  of  .such  copy  appends  a  certificate  of  veri- 
fication, loses  some  of  its  objectionable  features,  yet  this  is  but  a 
poor  protection,  as  the  printer  merely  presents  what  he  finds,  and 
if  foreign  matter  has  been  introduced  into  the  original  it  will  of 
course  be  reproduced  in  the  duplicate.  Nor  does  the  fact  that  a 
comparison  of  such  duplicate  with  the  original  has  been  made  by 
a  notary,  and  of  which  fact  a  certificate  under  his  hand  and  official 
seal  accompanies  the  copy,  make  the  copy  much,  if  any,  more  re- 
liable. In  both  of  these  instances  the  opportunities  for  fraud  and 
imposition  are  present,  while  ignorance,  carelessness,  mistake  and 
accident  may  all  conspire,  where  no  bad  faith  exists,  to  render 
such  cop3'  inaccurate  and  unreliable. 

But  as  printed  copies  will  continue  to  be  used,  and  as  in  many 
instances  the  cost  of  an  original  abstract  would  be  equal  to  the  price 
of  the  land,  care  should  be  observed  to  see  that  every  precaution 
has  been  taken  to  insure  the  reliability  of  such  copy  and  prove  its 
accuracy.  This  can,  in  a  large  measure,  be  successfully  accom- 
plished by  a  verification  of  the  printed  copy  by  the  examiner  who 
compiled  the  original,  and  it  is  recommended  that,  in  every  in- 
stance where  a  printed  copy  is  offered  in  support  of  title,  a  com- 
parison be  first  made  by  the  examiner,  and  a  certificate  under  his 
hand,  that  same  is  a  true  copy,  be  appended  thereto.  To  insure 
further  accuracy  the  examiner  should  write  his  name,  or  at  least 
his  initials,  upon  every  page  or  sheet  of  the  copy,  and  if  after 


§613]  OPINIONS  OF  TITLE.  643 

all  this,  imposition  is  still  practiced,  counsel  will  at  least  have  the 
satisfaction  of  knowing  that  the  imposition  was  beyond  his  power 
to  prevent  and  that  he  has  fully  performed  his  duty  in  the  mat- 
ter." 

A  certificate  of  verification  should  fully  identify  the  copy  to 
which  it  is  annexed  by  proper  references  to  the  original  and 
should  unmistakably  state  the  primarj^  fact  of  correctness.  If 
any  divergence  from  the  original  is  shown  this  should  be  noted 
and  if  corrections  are  made  in  the  copy  these  also  should  be  indi- 
cated.    The  following  will  serve  as  an  illustration : 

The  foregoing  seventeen  (17)  pages  (this  included)  is  a  true 
copy  of  the  origino.1  examination  of  title  except  [here  note  differ- 
ences, if  any,  as ;  that  sundry  words  ahhreviuted  in  the  original  are 
printed  in  full  in  this  copy  and  sundry  words  written  in  full  in 
the  original  are  abhreviated  in  this  copy]  Corrections  Xos.  1  to  40 
inclusive,  in  red  ink,  made  hy  us.  Handy  &  Company. 

§  613.  Framing  Opinions.  After  the  abstract  has  been  thor- 
oughly perused,  the  inquiries  answered,  the  requisitions  satisfac- 
torily supplied,  and  the  relative  rights  of  parties  determined, 
counsel  should  proceed  to  formulate  his  opinion  in  a  connected 
and  orderly  manner.  This  will  include:  first,  a  concise  caption  or 
title,  similar  to  that  which  prefaces  the  abstract,  describing  the 
object  and  purport  of  the  opinion.  Then  follows  the  result  of  his 
investigations,  and  here  should  be  stated  all  the  defects  and  irregu- 
larities which  he  may  deem  worthy  of  notice  as  affecting  the  title. 
Finally  comes  the  formal  opinion,  which  should  be  as  concise  and 
terse  as  possible,  and  based  upon  the  abstract  and  the  defects  or 
other  matters  noted  in  the  stating  part  of  the  opinion.  Should 
the  exigencies  of  the  case  require  it,  or  the  client  so  direct,  counsel 
may  add  such  directions  or  suggestions  as  to  him  may  seem  expe- 
dient in  perfecting  what  the  abstract  shows  to  be  an  imperfect 
title,  but  it  is  suggested  that  the  better  way  is  to  communicate 
such  information  or  directions  together  with  any  hypothetical 
opinions,  by  a  separate  writing,  and  confine  the  opinion,  which  it 
is  proposed  to  annex  to  the  abstract,  solely  to  the  state  of  the  title 
which  the  abstract  presents. 

Another  method,  and  one  that  is  preferred  by  many  lawyers, 
is  to  state  the  general  opinion  first  and  then  to  follow  with  a 

61  For  a  more  extended  discussion  abstract  see  Warvelle  on  Vendors, 
as  to  what  constitutes  a  merchantable       §  292,  et  seq. 


644  ABSTRACTS   OF   TITLE.  [§  613 

recital  of  the  defects  or  imperfections  of  title  wliit-h  ([ualify  tlio 
opinion.  Either  method  will  serve  to  apprise  the  client  of  the  con- 
dition of  the  title. 

§614.  Opimons  of  Title.  A  formal  opinion  upon  the  merits 
of  the  })roirered  title  does  not  seem  to  have  been  contemplated  by 
the  English  writers  on  the  subject  of  abstracts,  nor  by  those 
American  writers  who  have  heretofore  ventured  to  touch  upon  the 
theme,  and  this  feature  is  doubtless  an  outgrowth  of  "western 
civilization."  The  queries,  objections,  requisitions,  etc.,  of  an 
English  examiner  in  a  measure  take  the  place  of  a  formal  opinion, 
as  they  tend  to  note  and  point  out  defects  and  make  suggestions 
whereby  defects  may  be  remedied  and  missing  links  supplied. 
But,  as  abstracts  are  now  prepared,  a  carefully  framed  opinion 
is  an  inseparable  incident  and  a  fitting  climax  of  every  examina- 
tion. 

There  are  two  methods  of  framing  opinions  of  title,  both  of 
which  are  in  general  use.  The  first,  and  most  common,  consists 
of  statements  based  upon,  and  annexed  to,  a  formal  abstract,  and 
is  made  by  counsel  after  a  perusal  thereof;  the  second,  is  where 
the  examiner,  after  investigating  the  title,  by  personal  examina- 
tion of  the  records  or  of  his  own  indices  thereto,  places  the  title 
in  some  individual  named  subject  to  whatever  impairments  he 
maj^  find  of  record.  This  latter  method  is  also  known  as  "cer- 
tifying the  title."  No  chain  or  affirmative  evidence  is  usuall,y 
shown  in  such  cases.  Frequently  such  certificate  is  based  upon  a 
directed  assumption  of  title  in  a  certain  person  at  a  certain  date, 
and  the  examiner  certifies  from  his  examination  of  the  records 
from  such  date.  In  the  latter  case,  the  certifier  assumes  the  dual 
office  of  examiner  and  attorney,  and  in  many  cities,  where  no 
sjiocial  class  of  examining  conveyancers  or  abstract  makers  exists, 
all  abstracts  and  examinations  are  made  in  this  rnanner.  The 
plan  has  little  to  recommend  and  much  to  condoinu  it,  and,  in 
the  opinion  of  the  writer,  more  satisfactory  results  arc  obtained, 
at  least  in  populous  and  active  cities,  by  a  thorough  dissocia- 
tion of  abstract  maker  and  couiisel.^^     An  opinion  of  title  made 

62  Possibly  the  writer's  experience  ties  an  effort  has  been  made  by  law 
Has  tended  to  prejudice  him  jn  favor  to  abolish  the  old  and  well  settled 
of  a  system  with  which  he  has  long  system  of  recording  titles,  by  the  in- 
been  familiar,  but  from  what  he  has  troduction  of  the  crude  methods  of 
seen  of  "Certificates  of  Title,"  he  is  some  European  countries.  By  this 
strongly  inclined  to  condemn  their  innovation,  usually  called  the  "Tor- 
use.    Of  late  years  and  in  some  locali-  reus  System,"  a  Certificate  of  Title 


§  614]  OPINIONS    OF    TITLE,  645 

in  the  manner  just  described  would  be  prepared  somewhat  in  the 
following  manner: 

OPINION  OF  TITLE 

to 

Lots  17  and  18,  Block  3,  Town  of  Hyde  Park,  Cook  County,  Ills. 


By  direction  of  William  P.  Smith,  at  whose  request  this  opimom 
is  given,^^  it  is  assumed  without  examination,^^  that  on  June  11, 
1870,  the  Trustees  of  the  Town  of  Hyde  Park  held  the  title  to  the 
fee  of  said  Lots  17  and  18,  free  from  incumbrance.  From  an 
examination  of  the  records  of  Cook  County,  Ills.,  (or,  of  our  Indexes 
to  the  Records,  etc.)  of  Deeds,  Judgments,  and  Tax  Sales,  made 
upon  the  above  stated  assumption,  we  conclude  that  the  title 
to  the  fee  of  said  Lots  is  now  vested  in  John  F.  Hanson,  subject 
to  defects,  if  any,  existing  in  the  execution  or  acknowledgment  of 
the  following  deed:  ('or;  subject  to  the  lien  of  the  following  mort- 
gage, etc.) 

Here  follows  an  abstract  or  summary  of  the  deed,  mortgage,  lien, 
judgment  or  other  matter,  which,  in  the  opinion  of  the  person  cer- 
tifying, impairs  or  clouds  the  title  of  the  individual  named  in  the 
certificate.    If  nothing  appears  to  impair  the  title,  say : 

Subject  to  no  objection  indicated  by  our  books. 

or, 

Subject  to  no  objecton  indicated  by  the  public  records. 

is  issued  by  an  officer  having  the  tics,  who  may  have  purchased  or  ad- 
superintendence  of  a  transfer  register.  vanced  money  on  the  assurances  of 
The  movement  seems  to  be  an  effort  the  certificate:  Sec  Bank  v.  Ward, 
on  the  part  of  brokers  and  real  estate  100  U.  S.  195. 

dealers  to  eliminate  law  and  lawyers  64  In  every  case  where  an  assunip- 

from  transactions  relating  to  land  and  tion  is  made  it  should  be  so  stated, 

to  restore  the  old  conditions  of  primi-  while  it  is  always  advisable  to  state 

tive  simplicity  in  which  lawyers  and  as  well  that  same  has  been  done  by 

abstract  makers  are  unknown.  direction  and   often  at   whoso   dirce- 

63  This  is  a  matter  of  protection  to  tion.      This   is   a   direct   and   positive 

the   examiner.      It   shows   the   privity  notice    that    the    examination    is    im- 

of    contract    existing    between    client  perfect  on  certain  recogiii/.ed  theories 

and  counsel,  and  prevents  claims  for  of  the  law  of  conveyancing  and  regis- 

damages  being  asserted  by  third  par-  tration. 


646  ABSTRACTS   OF    TITLE.  [§  614 

After  this,  any  spe-c-ial  matter  by  -way  of  qualification  or  ex- 
planation may  be  inserted  whieh  slionld  be  followed  by  the  date  of 
the  examination  and  the  examiner's  sirrnature.  In  these  certifi- 
cates a  wide  option  is  left  with  the  examiner,  and  in  this  lies  the 
chief  source  of  danger.  He  may  regard  or  disregard  all  such  in- 
struments as  he  may  see  tit,  passing  not  only  on  their  formal  suffi- 
ciency, but  their  legal  effect  as  well,  and  that  without  displaying 
them,  or  displaying  only  such  of  tliem  as,  in  his  opinion,  create  liens 
or  incumbrances  upon  the  title. 

Should  the  examiner  desire  to  qualify  his  opinion,  as  is  fre- 
quently the  ease,  this  may  be  done  by  a  statement  substantially  as 
follows : 

This  opinion  is  not  to  he  construed  os  covering: 
1st.     Any  matter  or  thing  not  noted  on  our  indexes  to  records 
in  Cook  County,  III.,  of  deeds,  judgments,  and  tax  sales,  and  es- 
pecially unpaid  taxes  and  adverse  possession. 
2nd.     Any  other  matter  of  thing,  etc. 

§  615.  Continued — Certificates  of  Title.  A  striking  instance  of 
the  subject  under  discussion  is  furnished  by  a  late  Missouri  case,^^ 
wherein  the  examiner  compiled  an  abstract  in  which  he  certified 
that,  "as  per  the  county  records  and  the  county  index  to  said  rec- 
ords," the  title  to  the  land  in  question  was  "good"  on  the  day  of  the 
date  of  such  abstract  in  one  Daniel  Cobb,  "and  that  there  was  no  in- 
cumbrance thereon,  nor  any  lien  thereon  excepting  for  certain 
taxes  therein  specified."  As  a  matter  of  fact  a  trust  deed  was 
then  of  record  purporting  to  convey  the  subject-matter  of  the 
examination,  but  executed  by  one  who  at  the  time  had  no  record 
title,  although  he  afterward  acquired  same,  and  this  subsequently 
acquired  title  was  that  which  the  examiner  had  certified  as  "good" 
in  Daniel  Cobb,  the  second  grantee.  The  examiner  in  this  case 
admitted  that  he  was  wholly  ignorant  of  the  existence  of  the 
prior  deed,  but  attempted  to  justify  upon  the  ground  that  a  deed 
recorded  before  the  grantor  has  any  record  title  may  be  safely 
disregarded  in  examinations  of  title,  under  the  system  of  regis- 
tration and  notice  adopted  in  the  United  States,  and  upon  this 
point  the  case  turned  in  the  appellate  court.  Upon  a  question  of 
this  character  the  examiner  can  afford  to  take  no  chances.     The 

66  Dodd  V.  Williams,  3  Mo.  App. 
278.  Consult  in  this  connection.  Bank 
V.  Ward,  100  U.  S.  195. 


§  616]  OPINIONS   OP    TITLE.  647 

law  is  so  difficult;  the  exceptions  to  its  rules  so  numerous;  the 
cases  SO  many  and  so  slightly  distinguished,  so  often  apparently 
conflicting,  that  the  risk  is  too  great,  unless  he  is  also  willing  to 
assume  the  liability  that  may  attach  to  it.  What  constitutes  a  lien 
or  incumbrance  upon  real  estate  may  in  some  instances  be  a  diffi- 
cult question  to  decide;  "but  an  examiner  of  titles,"  says  Baksi 
well,  J.,*^^  "is  bound  to  know  the  state  of  the  law  on  the  subject, 
and,  where  there  may  be  a  reasonable  doubt  as  to  whether  such 
or  such  a  recorded  instrument  is  a  lien,  if  he  chooses  to  resolve 
the  doubt  he  does  so  at  his  own  peril.  *  *  *  If  he  does  not 
choose  to  assume  this  liability  he  may  easily  avoid  it  by  noting  in 
his  certificate  every  question  which  arises  upon  the  title  as  to 
which  there  can  be  the  slightest  doubt  in  the  legal  mind,  or  by 
giving  a  list  of  deeds  and  incumbrances,  and  abstaining  from  ex- 
pressing any  opinion  as  to  their  legal  effect." 

§616.  Opinions  Based  Upon  the   Abstract.     As  a   rule   few 

lawyers  desire  to  have  anything  to  do  with  the  compilation  of  the 
abstract,  further  than  such  incidentals  as  necessarily  result  from 
the  inquiries,  requisitions  and  objections  made  upon  the  title.    The 
assumption  of  the  dual  character  of  examiner  and  counsel  can 
rarely  be  successfully  accomplished,  for  an  attorney  competent  to 
pass  upon  the  grave  questions  so  often  presented  can  hardly  spare 
from  his  practice  the  time  which  must  be  consumed  in  the  prepara- 
tion and  proper  keeping  of  indices,   nor,   even  when  public  in- 
dices are  available,  the  time  necessary  for  a  proper  search ;  while  an 
examiner  who  makes  a  business  of  furnishing  abstracts  does  not, 
and  from  the  very  circumstances  of  his  business  can  not,  devote  the 
time  necessary  to  keep  up  a  theoretical  knowledge  of  the  law  ap- 
plicable to  examinations  of  title,  while  he  is  entirely  deficient  in. 
that  fine  legal  acumen  that  comes  only  from  direct  and  personal  ex- 
perience in  the  every-day  walks  of  a  lawyer's  life.    The  examiner, 
by   constant  practice,   becomes  very   expert  in   compilations,   far 
more  so  than  a  lawyer  making  occasional  searches  can  ever  hope 
to  be,  but  by  constantly  directing  his  attention  only  to  requisites 
and  defects  of  form  in  instruments  and  proceedings  which  pass 
under  his  hands,  and  though  becoming,  so  far  as  relates  to  such 
matters,  an  authority,  he  yet  loses  sight  of  much  of  the  legal  effect 
of  such  instruments  and  proceedings,  and  for  this  reason,  if  none 
other,  should  never  attempt  an  opinion. 

The  opinion  of  counsel  is  based,  in  the  first  instance,  upon  the 

66Dodd    V.    Williams,    3    Mo.    App. 
278. 


648  ABSTRACTS   OF    TITLE.  [§  GIG 

presumption,  necessarily  entertained,  that  the  examiner  has  faith- 
fully performed  his  work  and  tliat  the  abstract  is  a  true  reflex 
of  the  records,  and  of  every  mailer  and  thing  shown  thereby  that 
apparently  ailccts,  impairs  or  implicates  the  title  under  considera- 
tion. It  may  be  coutined  to  a  bald  statement  of  the  title  shown 
by  such  abstract,  with  no  comments  or  suggestions,  or  it  may  indi- 
cate the  weakness  of  the  title  with  recommendations  for  strength- 
ening same.  But,  inasmuch  as  the  client  frequently  seeks  pro- 
fessional aid  quite  as  much  for  advice  and  assistance  in  perfecting  a 
title,  this  matter  will  depend  largely  upon  the  client's  wishes. 

In  the  event  just  indicated,  the  perusal  and  analysis  will  pos- 
sibly suggest  many  inquiries,  which,  unless  remedied  before  the 
opinion  is  rendered,  must  find  adequate  expression  therein  and 
where,  upon  a  continuation,  former  opinions  have  suggested  acts 
to  be  done,  the  continuation  should  show  compliance  with  such 
suggestions.  ^Vhere  the  title  is  defective  from  any  cause  capable 
of  easy  remedy,  as  where  missing  deeds  are  found  upon  inquiry,  or 
satisfactory  information  is  furnished  in  answer  to  requisitions,  the 
several  matters  should  be  placed  on  record  and  a  supplemental  ab- 
stract made  covering  such  special  matter.  Upon  the  original  and 
supplemental  abstract  the  opinion  may  be  rendered,  and,  if  all 
doubts  have  been  resolved  thereby,  such  opinion  would  consist  of 
little  else  than  a  statement  that  the  fee  of  the  premises  rests  in 
whoever  is  shown  to  be  the  owner,  unincumbered  and  unembar- 
rassed. More  frequently,  however,  counsel  prefer  to  recite  the  ob- 
jectionable features,  and  qualify  the  opinion  by  reference  to  such 
recitals,  leaving  the  client  to  accept  or  reject  the  title,  as  his  in- 
clination may  suggest,  or  take  steps  to  perfect  it  in  accordance 
with  the  opinion.  When  such  is  the  case  an  opinion  may  be  ren- 
dered somewhat  after  the  following  manner : 

OPINION  OF  TITLE 

to 

Lot  10,  in  Block  40,  of  Simpson's  subdivision  of  the  N.  E.  qr.  of 
Sec.  10,  T.  12  N.,  R.  13  E.,  as  disclosed  by  the  annexed  abstract, 
made  by  Haddock,  Vallette  and  Rickcords,  and  dated  Aug.  15, 
1883. 


I  have  examined  the  annexed  abstract,  consisting  of  twenty-three 
numbers,  relative  to  the  title  thereby  disclosed  to  the  premises 
above  and  in  said  abstract  described,  and  find: 

A  defective  deed,  shown  as  No.   10  from  Thomas  Jones   and 


§  616]  OPINIONS  OF  TITLE.  649 

Olivia,  his  wife,  to  Cyrus  B.  Maxwell,  in  that  said  Olivia  failed 
to  release  her  dower  in  the  manner  then  (1842)  prescribed  by  law. 

A  defective  deed  shown  as  No.  18,  from  Benson  Hardy  to  Wil- 
liam J.  Hanson,  in  that  the  wife  of  said  Hardy,  she  having  been 
shown  to  be  then  and  still  living,  failed  to  release  her  dower  by 
joining  in  the  execution  of  said  deed. 

A  mortgage  for  $500.00,  shown  as  No.  19,  from  William  J.  Han- 
son to  Thomas  Jackson,  the  indebtedness  thereby  secured  matur- 
ing Jan.  31, 1889. 

I  further  find: 

No  releases  or  waivers  of  the  right  of  dower  purporting  to  be 
made  by  Olivia  Jones  or  the  wife  of  Benson  Hardy,  shown  by  said 
abstract  to  be  of  record  in  this  county. 

No  release  or  discharge  of  the  mortgage  above  noted. 

And  I  am  of  the  opinion: 

That  conveyance  No.  10  creates  no  lien,  cloud,  or  charge  upon 
the  title,  and  that  the  defect  noted  is  cured  by  the  lapse  of  time 
and  the  possession  of  the  therein  mentioned  grantors'  assigns;  it 
satisfactorily  appearing  that  Thomas  Jones  has  been  dead  for  more 
than  twenty  years. 

That  conveyance  No.  18  discloses  a  contingent  lien  or  charge 
upon  the  title  to  the  extent  of  the  inchoate  right  of  dower  of  the 
wife  of  Benson  Hardy. 

That  the  mortgage,  No.  19,  is  a  valid  subsisting  incumbrance. 

I  am  further  of  the  opinion: 

That  the  title  to  the  fee  of  said  premises  is  now  vested  in  Wil- 
liam Springer,  free  from  all  liens,  charges  and  incumbrances 
appearing  of  record,  and  shown  by  said  abstract,  except  those 
hereinabove  expressly  enumerated  and  described. 

To  perfect  the  title  of  said  Springer,  I  would  recommend: 

A  deed  of  release  from  the  wife  of  Benson  Hardy. 

A  deed  of  release  from  Thomas  Jackson,  said  mortgagee,  or  his 
assigns. 

(Signed) 

THOMAS  W.  BROWN, 

Date.^"^  Counsel. 

The  foregoing  crude  outline  will  serve  to  suggest  a  form  for 
the  expression  of  opinions,  and  the  general  manner  in  which  such 

67  This  should  be  the  same  date  as       time  at  which  tlio  opinion  was  rend- 
that    appended    to    the    certificate    of       ered. 
the  abstract,  irrespective  of  the  actual 


650  ABSTRACTS   OP    TITLE.  [§  616 

opinions  should  exhibit  the  defeats  of  the  title.  It  is  necessarily 
brief,  and,  for  the  better  purposes  of  illustration,  very  simple,  yet 
will  indicate  the  method  of  treatment  of  more  difficult  and  com- 
plicated matters. 

A  more  concise  and  terse  way  of  preparing  an  opinion  would 
be  to  find  the  fact  of  title  first  and  then  show  defects,  if  any. 
Should  such  a  course  be  deemed  desirable  the  certificate  may  be 
constructed  after  the  following  form : 

7  Jimr  examined  the  annexed  abstract,  etc.,  and  am  of  opinian, 
that  the  title  to  the  fee  of  said  Lot  was  on  Aug.  15,  1883,^^  vested 
in  one  William  Springer,  subject  to  the  following  liens,  impair- 
ments and  defects. 

Then  set  out  the  impairments  of  title,  with  .such  recommenda- 
tions as  may  be  thought  necessary  or  expedient. 

Where  the  abstract  consists  of  several  continuations,  made  by 
the  same  or  different  examiners,  it  may  be  well  to  preface  the 
opinion  with  a  recital  of  the  different  examinations  under  con- 
sideration, thus : 

I  have  examined  ichat  purports  to  be  an  examination  of  title  by 
Hand]),  Simmons  d'  Co.,  from  the  government  to  date  of  June  W, 
1872. 

A  continuation  [or,  a  certified  copy  of  continuation]  of  same  by 
Haddock,  Coxe  d-  Co.,  to  date  of  April  20,  1879. 

A  continuation  by  Chicago  Title  and  Trust  Company  to  date  of 
July  1,  1920,  and  find,  etc. 

If  the  abstract  itself,  for  any  reason,  is  not  merchantable,^^  it 
is  better  to  apprise  the  client  of  this  defect  before  attempting  to 
make  a  perusal,  that  proper  steps  may  be  taken  to  remedy  the 
defect,  but  should  the  client  be  willing  to  accept  the  abstract  as 
furnished  and  direct  an  opinion  thereon,  prudence  would  suggest 
that  counsel  specifically  note  this  fact  in  his  opinion,  as  for  in- 
stance : 

The  continuation  purporting  to  be  made  by  Haddock,  Coxe  d& 
Co.,  under  date  of  April  20,  1879,  I  consider  unmerchantable,  in 

68  The  date  of  the  certificate  of  which  is  accepted  without  question 
the   abstract.  by  the  profession.    There  are  no  rules 

69  This  term  has  now  come  to  be  a  for  determining  the  fact  of  merchant- 
recognized  expression  among  lawyers,  ability  and  the  matter  rests  largely 
to  denote  an  abstract  complied  and  in  general  consensus  of  opinion,  the 
certified  by  a  responsible  person  and  resolutions  of  Bar  Associations,  etc. 


§  617]  OPINIONS    OP    TITLE.  651 

that  it  appears  to  be  a  copy  and  not  an  original,  and  is  without 
proper  certificatio7i;  hut  by  direction  of  Robert  Smith,  Esq.,  for 
whom  this  opinion  is  made,  I  assume  that  it  is  a  true  copy,  and 
this  opinion  is  expressly  subject  to  and  qualified  by  undisclosed  de- 
fects of  title,  if  any,  during  the  period  covered  by  said  search. 

It  is  customary,  and  quite  proper,  to  add  certain  directions  or 
suggestions  as  aids  to  the  purchaser  in  making  inquiries  in  pais 
or  with  respect  to  matters  not  covered  by  the  examination,  and 
these  suggestions  may  be  shown  by  a  note,  just  before  the  signa- 
ture, in  this  manner: 

Note. — The  taxes  for  1921  are  now  a  lien."^^ 

Satisfactory  assurance  should  be  furnished  of  the  payment  of 
taxes  for  the  year  1920.'^'^ 

Attention  is  directed  to  the  present  occupation  of  the  premises, 
if  any,  and  the  rights  of  the  parties  in  possession. 

For  greater  certainty  many  lawyers  append  to  their  opinions  a 
statement  of  the  matters  not  passed  upon  and  to  which  the  opinion 
is  subject.    Thus,  they  say  : 

This  opinion  is  expressly  subject  to: 

1.  Rights  or  claims  of  parties  in  possession  not  shoivn  of  record. 

2.  Defects  of  title,  if  any,  which  may  be  disclosed  hy  an  accurate 
survey. 

3.  Possible  rights  of  dower  of  the  spouse  of  owner. 

4.  Mechanic's  liens  not  shown  of  record. 

5.  Special  assessments,  if  any,  which  have  not  been  confirmed. 

6.  Taxes  for,  etc. 

§  617.  Perspicuity  of  Expression.  In  every  case  the  language 
of  an  opinion  should  be  clear  and  perspicuous.  This  is  a  prime 
requisite.  Counsel  occasionally  shirk  a  direct  opinion  by  hypo- 
thetical statements  as  to  what  the  title  might  be  if  certain  mat- 

70  This  is  a  sort  of  reminder  to  the  71  This  should  be  inserted  in  opin- 

parties  for  the  purpose  of  fixing  con-  ion   rendered   after  Dec.    1,   or   what- 

ditions  of  sale  and  should  always  be  ever   other   day   is   fixed    by    law    for 

inserted    in    opinions    rendered    after  the  coinniencenient  of  the  payment  of 

May    1,    or    whatever    other    day    the  taxes  for  the  past  year.     Should  the 

statute  may  prescribe  as  the  time  of  abstract  disclose   payment   the   clause 

commencement   of   lien  for   the   taxes  should,   of  course,   be  omitted, 
of  the  year. 


652  ABSTRACTS   OP   TITI,E.  [§  (>17 

ters  could  be  shown;  as,  that  the  title  "would  be  good  in  John 
Smith,  provided,"  etc.  This  can  not  be  regarded  as  a  desirable 
method  of  expression.     The  issue  should  be  met  fairly. 

So  also,  the  use  of  qualifying  adjectives  in  connection  with  title 
is  very  objectionable.  Notwithstanding  the  fact  that  a  court  of 
equity  sometimes  hesitates  to  pronounce  a  title  invalid  that  it  yet 
will  not  force  upon  an  unwilling  purchaser,  and  hence  pronounces 
it  doubtful,  there  are  no  degrees  of  excellence  in  titles."'^'^  At  law 
all  titles  are  valid  or  invalid.  It  is  not  in  good  form,  therefore, 
to  say  that  a  "good"  title  is  vested  in  any  person,  for  this  implies 
that  there  may  be  a  "better,"  and,  possibly,  a  "best,"  while  a 
"bad"  title  is  simply  no  title.  It  is  still  worse  to  say,  as  is  often 
done,  that  A  B  possesses  "substantially  a  good  title,"  or,  that  the 
title  is  "substantially  good"  in  a  person  named.  As  colloquial 
phrases  such  terms  may,  and  do,  have  a  definite  meaning,  but  in 
formal  written  opinions  they  are  out  of  place.  The  title  should 
be  specifically  found  in  whomsoever  it  is  made  to  appear,  and  it 
must  rest  somewhere.  If  it  is  obscured,  or  insecure  in  the  person 
named,  state  the  facts  and  announce  the  legal  effect.  There  is 
no  such  thing  in  law  or  in  fact  as  a  doubtful  title  per  se,  although 
the  claim  of  an  individual  to  title  may  be  the  subject  of  doubt. 
The  fee  is  always  in  existence ;  it  is  never  in  abeyance ;  it  is  never 
without  an  owner;  it  is  never  "good,"  "bad"  or  "doubtful."  The 
evidences  of  the  rights  of  ownership  may  l)e  all  or  either,  but  the 
confusion  of  terms  sometimes  betrays  counsel  into  expressions  that 
he  does  not  really  mean.  The  term  "marketable  title"  is  em- 
ployed by  the  courts,  and  has  acquired  a  definite  legal  meaning, 
yet  there  is  nothing  gained  by  its  use  in  framing  an  opinion. 

In  a  finding  of  title  the  estate  should  always  be  mentioned. 
While  we  are  accustomed  to  speak  of  the  title  to  land  yet  this  is 
not  strictly  accurate.  It  is  the  interest  in  land,  or  the  estate,  that 
is  held  by  a  title,  not  the  land  itself,  and  a  properly  framed 
opinion  should  indicate  the  nature  and  extent  of  the  interest.  To 
find  that  the  title  is  vested  in  a  person  named  is  not  enough ;  he 

72  It  is  the  specific  claim  of  title  "good."  A  claim  to  this  owner- 
to  which  a  court  alludes  when  pass-  ship  and  estate  may  be  made  by 
ing  upon  its  validity.  In  common  several,  but  unless  there  is  a  common 
parlance  we  speak  of  good  titles,  tenancy  only  one  can  possess  it.  The 
bad  titles,  and  doubtful  titles  but  we  claim  of  the  others  we  often  de- 
mean the  claim  of  title  and  the  evi-  nominate  titles;  a  palpable  misnomer ; 
.  dence  upon  which  it  is  founded,  and  and  in  speaking  of  such  claims  we  fre- 
not  the  title  itself.  An  allodial  title  quently  say  his  title  is  bad,  etc., 
in  fee  is  the  highest  type  of  owner-  meaning,  however,  the  insufiQciency  of 
ship   and   estate,   and   this   is  always  the  evidence  of  his  claim. 


§  618]  OPINIONS    OF    TITLE.  653 

may  have  title,  and  a  ''good"  title,  and  yet  not  have  the  ultimate 
ownership.  If  the  abstract  discloses  that  the  person  named  is 
possessed  of  the  fee  this  fact  should  be  stated.  If  there  are  several 
united  in  ownership  this  fact  should  be  stated  and  the  character 
of  the  estate  held  by  them,  whether  jointly  or  in  common,  should 
be  announced.  If  any  lesser  estate  than  the  fee  is  shown,  then, 
in  most  cases,  the  ownership  of  both  the  particular  and  the  ulti- 
mate estates  must  be  found. 

§  618.  Oral  Opinions.  Questions  as  to  the  propriety  or  expe- 
diency of  oral  opinions  in  matters  of  title  are  solely  for  individual 
solution.  It  would  seem  that  in  so  weighty  a  matter  as  the 
acceptance  or  rejection  of  a  title,  if  an  opinion  is  worth  render- 
ing, it  is  worth  reducing  to  writing.  It  is,  or  should  be,  the 
result  of  careful  and  critical  examination,  and  presumably,  has 
cost  counsel  many  hours  of  laborious  investigation.  Whether  the 
questions  presented  be  trivial  or  momentous,  since  the  decision 
of  the  issue  is  of  importance  to  the  intending  purchaser,  is  it 
well  to  leave  it  to  his  unaided  recollection?  Whatever  action 
counsel  may  have  taken,  unless  he  preserves  all  his  memoranda, 
the  pressure  of  other  matters  soon  drives  from  his  mind,  and 
when,  afterward,  the  purchaser,  who  then  entertains  but  an  indis- 
tinct recollection  of  what  was  told  him,  applies  to  counsel  for  infor- 
mation on  some  particular  point  connected  therewith,  counsel  can 
remember  nothing  whatever  about  it.  The  opinion,  in  such  a  case, 
except  as  it  may  have  influenced  the  sale  at  the  time  it  was  ren- 
dered, was  practically  useless  and  the  time  consumed  in  its  prep- 
aration, in  one  sense,  wasted  and  lost.  Again,  the  client  may 
not  have  understood  the  opinion  as  counsel  pronounced  it,  and 
a  dispute  arises  between  counsel  and  client  as  to  the  advice  actu- 
ally given;  and  thus  counsel  is  drawn  into  a  controversy,  the 
most  detestable  in  which  it  is  possible  for  a  lawyer  to  be  engaged. 

All  this  can  be  avoided  by  reducing  the  opinion  to  writing. 
There  it  remains  unchanged,  with  no  chance  for  disputes  or  mis- 
constructions;  always  available  when  needed;  and  frequently  a 
strong  pillar  in  support  of  the  title  when  it  is  again  placed  upon 
the  market.  The  general  subject  of  preservation  of  memoranda, 
made  in  the  examination  of  an  abstract,  has  already  been  noticed. 
This  applies  with  special  force  to  the  attorney's  opinion  of  title. 
In  every  instance  a  copy  of  such  opinion  should  be  preserved.  It 
will  sometimes  happen  that  the  original  opinion  delivered  to  the 
client  is  lost  or  destroyed.     Where  questions  arise  between  client 


G54  ABSTRACTS   OP    TITLE.  [§619 

and  counsel,  in  u.  i-ase  of  tliis  kind,  the  copy  kept  by  counsel  may 
become  of  much  moment   in  the  settlement  of  disputed  facts. 

§  619.  Liability  for  Erroneous  Opinions.  An  attorney  em- 
ployed by  a  purchaser  of  real  property  to  investigate  the  title 
of  the  grantor  prior  to  the  purchase,  impliedly  contracts  to  exer- 
cise reasonable  care  and  skill  in  the  performance  of  the  undertak- 
ing, and  if  he  is  negligent  or  fails  to  exercise  such  reasonable  care 
and  skill  in  the  discharge  of  the  stipulated  service,  he  is  respon- 
sible to  his  employer  for  the  loss  occasioned  by  such  neglect  or  want 
of  care  and  skill.  Like  conditions  and  results  also  follow  an  em- 
ployment to  investigate  and  ascertain  whether  propert}'  offered  is 
a  safe  or  suflieient  security  for  a  loan  of  money .''^^ 

The  obligation  imposed  on  the  attorney  does  not  require  of  him 
the  possession  of  perfect  legal  knowledge  or  the  highest  degree  of 
skill  in  relation  to  business  of  that  character,  nor  that  he  will  con- 
duct it  with  the  greatest  degree  of  diligence,  care  and  prudence, 
but  simply  that  he  shall  possess  the  ordinary-  legal  knowledge  and 
skill  common  to  members  of  the  profession ;  and  that,  in  the  dis- 
charge of  the  duties  he  has  assumed,  he  will  be  ordinarily  and  rea- 
sonably diligent,  careful  and  prudent.'*  This  is  the  ordinary  un- 
dertaking of  every  attorney  in  every  branch  of  legal  employment, 
and  while  courts  have  ever  been  inclined  to  exercise  leniency  in 
dealing  with  questions  of  this  character  the  rule  has  always  been 
strictly  enforced  whenever  the  facts  have  been  brought  within  its 
operation.  Ileuce  it  follows,  as  a  necessary  sequence,  that  if  the 
attorney  fails  to  bring  to  the  discharge  of  the  duties  assumed  by 
him,  the  ordinary  legal  knowledge  and  skill  possessed  by  mem- 
bers of  the  profession,  or  has  failed  to  discharge  the  duties  with 
ordinary-  and  reasonable  diligence,  care  and  prudence,  he  will  be 
guilty  of  negligence,  and  liable  to  the  client  for  the  damages  he 
may  have  sustained  by  reason  thereof.'^ 

In  most  of  the  cases  where  the  ([uestiou  has  been  raised  the 
errors  charged  have  related  mainly  to  the  management  of  suits, 
and  consisted  in  the  non-observance  of  established  forms  and 
legal  rules,"'^  and  the  damages  were  the  direct  result  of  the  neg- 

73  Addison  on  Cent.  (6th  Ed.)  400;  285;   Ganibert  v.  Hart,  44   Cal.  543; 
Dodd   V.   Williams,   3   Mo.   App.   278;  Skillen  v.   Wallace,  36   Ind.  319. 
Dundee  Mtg.  Co.  v.  Hughes,  20  Fed.  76  Spangler  v.  Sellers,  5  Fed.  Rep. 
Rep.    39 ;    Houseman   v.    Girard,   etc.,  882. 

Ass'n,    81    Pa.    St.    256;    Watson    v.  76  Spangler  v.   Brown,   26  Ohio   St. 

Muirhead,  57  Pa.  St.  161.  389;   Gambert  v.   Hart,  44  Cal.   542; 

74  Wharton  on  Neg.  749;  Shear.  &  Skillen  v.  Wallace,  36  Ind.  319; 
Red.    on   Neg.    211;    Wells   on   Attys.  Walker  v.  Goodman,  30  Ala.  482. 


§  619]  OPINIONS   OF   TITLE.  655 

ligeiK-e  of  the  attorney.  The  rule,  however,  is  just  as  applicable 
to  opinions  or  assurances  of  title  and  the  attorney  must  be  held  to 
a  strict  accountability  for  acts  of  negligence.''  But  if  he  acts  in 
good  faith,  to  the  best  of  his  skill,  and  with  an  ordinary  degree  of 
attention,  he  will  not  be  responsible.'®  He  is  not  liable  for  mere 
errors  of  judgment,  nor  for  mistakes  of  law  in  matters  where  the 
law  is  not  well  settled.'^  These  are  general  principles  of  univer- 
sal recognition. 

In  a  case  decided  by  a  federal  court  in  Oregon,  it  was  held  that 
where  an  attorney  who  is  employed  to  examine  the  title  of  prop- 
erty offered  as  security  for  a  loan,  certifies  that  the  security  is  a 
"good"  one,  he  thereby  warrants  that  the  title  shall  not  only  be 
found  "good"  at  the  end  of  a  contested  litigation,  but  that  it  is 
free  from  any  palpable  grave  doubts  or  serious  questions  as  to  its 
validity.^®  The  learned  judge  who  delivered  the  foregoing  opinion 
does  not,  however,  fortify  it  with  any  citations  of  authority,  and 
diligent  search  fails  to  reveal  any ;  while  in  a  later  case,  decided 
in  the  same  circuit,  it  was  held  that  prima  facie  there  is  no  element 
of  guaranty  involved  in  such  employment;  that  the  attorney  only 
undertakes  to  bring  to  the  discharge  of  his  duty  reasonable  skill 
and  diligence,  and  does  not  warrant  or  guarantee  the  correctness 
of  his  work  any  more  than  a  physician  or  mechanic  does.®^  It  may 
be  safely  said,  therefore,  that  the  s-tatement  first  above  made  does 
not  present  the  true  spirit  of  the  law  in  relation  to  the  facts  stated, 
and  that  there  is  no  implied  agreement  in  the  relation  of  counsel 
and  client,  or  in  the  employment  of  the  former  by  the  latter,  that 
the  former  will  guarantee  the  soundness  of  his  opinions,  or  that 
they  will  be  ultimately  sustained  by  a  court  of  last  resort. 

A  more  strict  rule  is  observed  in  case  of  examiners,  or  where 

77  Byrnes  v.  Palmer,  45  N.  Y.  Supp.  Jour.  559,  Fed.  Cases,  10,  668.  There 
479.  In  this  case  an  attorney  examin-  can  be  no  doubt  that,  in  a  case  similar 
ing  title  failed  to  properly  read  a  re-  to  the  above,  it  is  understood  by  the 
lease  of  mortgage  which  released  all  client  and  intended  by  the  attorney, 
of  the  lands  in  such  mortgage  "ex-  that  the  title  is  all  the  learned  judge 
cept"  certain  land  specifically  de-  claims  it  should  be,  but  no  authority 
scribed.  This  was  held  to  constitute  can  be  found,  so  far  as  the  investiga- 
such  negligence  as  rendered  him  liable  tion  of  the  writer  has  extended,  to 
to  his  client  for  damages.  And  see,  sustain  the  statement  that  the  attor- 
Dundee  Mtg.  Co.  v.  Hughes,  20  Fed.  ney  warrants  the  title,  nor  to  charge 
Rep.  39.  him   with   any   liability   upon   such    a 

78  Wilson   V.   Russ,   20   Me.   421.  warranty. 

79  Dodd  V.  Williams,  .3  Mo.  App.  81  Dundee  Mtg.  Co.  v.  Hughes,  20 
278;  Morrill  v.  Graham,  27  Tex.  646.  Fed.   Rep.   39. 

80  Page    V.    Trutch,    3    Cent.    Law 


656  ABSTRACTS  OF  TITLE.  [§  619 

the  attorney  professes  to  furnish  information  as  well  as  pass 
opinions  in  connection  therewith;  and  where  one  who  proposes 
to  make  a  specialty  of  examining  titles  in  the  course  of  his  busi- 
ness gives  a  certificate  that  he  has  made  examination  and  finds  no 
incumbrance  against  certain  property,  he  will  be  liable  if  the  in- 
cumbrance is  of  record  in  such  a  way  as  to  give  constructive  notice 
to  every  one  interested  and  actual  notice  to  every  one  looking  for 
it  in  the  proper  way.'^ 

It  is  a  further  rule,  sustained  by  a  long  line  of  decisions,  that 
an  attorney  is  liable  for  the  negligent  performance  of  professional 
duties,  arising  from  ignorance  or  want  of  care,  only  to  the  person 
who  employed  him — that  is,  to  one  between  whom  and  the  attor- 
ney a  contract  of  service  existed.  To  insure  a  recovery  for  any 
injury  arising  from  mere  negligence,  however  gross,  the  rule  seems 
to  be  imperative  that  there  must  exist  between  the  one  inflicting 
the  injury  and  the  one  injured,  some  privity,  by  contract  or  other- 
wise, by  reason  of  which  the  former  owes  some  duty  to  the  latter, 
and  the  rule  applies  with  full  force  to  acts  of  an  attorney  in 
framing  an  opinion  of  title.  A  third  party,  therefore,  who  may 
have  acted  upon  the  opinion  would  be  without  remedy  against  the 
attorney  unless  something  in  the  circumstances  of  the  case  should 
take  it  out  of  the  general  rule.^^  IMalice,  fraud,  collusion  or  other 
tortious  act  would  be  sufficient  to  create  a  responsibility  without 
reference  to  any  question  of  privity  between  the  tort  feasor  and 
the  injured  party,  but  where  these  elements  are  wanting  no  recov- 
ery can  be  had  by  a  third  party,  and  a  contract  l)etween  two  per- 
sons will  not  be  held  to  inure  for  the  benefit  of  a  third  person 
from  the  mere  fact  that  its  breach,  or  the  negligent  discharge  of 
the  duties  involved  in  it,  has  resulted  in  injury  to  another.'* 

§  620.  Conclusion.  In  bringing  this  book  to  a  close  the  writer 
perceives  many  imperfections  in  his  work,  and  feels  that  in  abler 
hands  its  treatment  might  have  been  far  different.  Yet  he  ven- 
tures to  express  the  hope  that  to  many  it  will  furnish  much  de- 
sired information  and  be  a  practical  help  and  guide.  The 
methodical  preparation  of  abstracts  of  title  in  the  United  States 
has  not  yet  passed  the  experimental  stage:  English  precedents 
furnish  but  little  assistance,  being  founded  upon  a  system  that 

82Dodd   V.   Williams,    3    Mo.    App.  83  Savings  Bank  v.  Ward.   100   TJ. 

278;    Chase   v.  Heaney,    70   ID.   368;  R.    195;    Buckley   v.    Gray,    110    Cal. 

Clark  V.  Marshall,  34  Mo.  429;  Bank  3?,9. 

T.  Ward.  100  IT.  S.  195.  M  Buckley  v.   Gray,    110    Cal.   339. 


§  620]  OPINIONS  OF   TITLE.  657 

never  had  any  practical  application  in  this  country,  and,  by  rea- 
son of  the  peculiar  genius  of  our  institutions,  never  can  have.  By 
slow  degrees  we  are  formulating  a  system  essentially  our  own,  and 
if  this  work,  by  precept  or  suggestion,  shall  be  instrumental  in 
assisting  in  this  formation,  in  discouraging  false  methods,  and  in 
affording  a  light  on  obscure  points  that  shall  aid  the  young  and 
inexperienced,  the  highest  desire  of  the  writer,  in  relation  thereto, 
will  be  satisfied. 


Warvelle  Abstracts — 42 


APPENDIX. 

NEW   ENGLAND   ABSTRACTS. 

A  peculiar  system  of  abstract  making  seems  to  prevail  in  the 
New  England  States,  or  certain  of  them.  This  system  is  appar- 
ently an  offshoot  from  that  now,  or  formerly,  practiced  by  the 
English  conveyancers,  and  resembles,  in  many  respects,  the  English 
abstracts  alluded  to  in  the  body  of  this  work,  particularly  in 
"marginal"  divisions.  It  is  not  the  same,  however,  as  that  ex- 
pounded and  illustrated  by  Lee,  Moore,  and  other  late  English 
writers,  but  is  probably  a  variant  of  the  same  general  stock.  There, 
as  in  England,  though  one  plan  is  to  show  everything  relating  to 
the  title  of  the  estate  under  consideration,  another,  and  the  one 
apparently  in  popular  use,  is  to  commence  with  some  early  deed 
as  the  root  of  the  title,  and  insert  after  it  a  list  of  the  conveyances 
made  by  the  grantee  to  the  point  or  time  when  the  estate  passes 
out  of  him,  and  so  continue  with  successive  grantees  until  the 
present  owner  is  reached.*     - 

The  instruments  are  very  fairly  and  fully  abstracted,  but  the 
examiner  indulges  in  a  wealth  of  abbreviation  unknown  to  any 
other  part  of  the  country.  It  is  arranged  very  systematically,  and, 
probably,  to  those  who  are  in  the  habit  of  examining  such  abstracts, 
conveniently.  The  name  of  the  grantor,  and  the  date  from  which 
his  title  is  traced,  is  written  at  the  top  of  the  page  and  over  the 
columns  or  margins,  which  are  then  filled  up  as  follows :  The 
first  contains  the  dates,  which  include  the  years  of  the  indexes, 
and  dates  of  execution,  acknowledgment  and  registration ;  the  name 
of  the  officer  taking  the  acknowledgment,  and  the  initials  of  each 
grantor,  where  there  are  more  than  one,  to  designate  his  separate 
conveyances.  Following  this  comes  the  book  and  page  of  the 
record  in  two  narrow  columns.  In  the  next  column  are  inserted 
the  names  of  the  grantees ;  consideration ;  notes  of  dower  and  home- 

1  See  appendix  by  M.  H.  Durgin, 
to  Curtis'  well  known  "American 
Conveyancer."      (Boston,   1871.) 

659 


660 


ABSTRACTS   OF    TITLE. 


stead;  words  of  grant;  covenants;  and  mention  of  formal  defects. 
In  the  last,  or  right  liand  colunni,  are  placed  tlie  descriptions; 
notes  of  incnmbrances;  conditions,  recitals,  etc.  As  a  further  ex- 
planation an  example  is  appended : 


inUAM    \V.    .SMITH,    UUANTOR    FROM     1822. 

1822  10  18:'.-). 

Noiu'. 

1835-7. 

355 

210 

Will.  Jackson. 

Mtg.   .$1,000,   2   yrs.      (Descri))- 
tion.)      Nov.   io,   1837.     Can- 
celed    on     margin     by     Win. 
Jackson. 

1838-9. 

None. 

1839. 

493 

121 

J.  L.  Woodman 

A  certain  parcel  of  Id.  in  Stan- 

Nov. 20. 

$5,000. 

ford,  on  sly.  side  of  Rush  St. 

"     21. 

contg.  15  acs.  ni.  or  1. 

"     21. 

Emma,  rel.  d. 

Beg.  at  S.  W.  cor.  on  Riisb  St. 

Jno.  Sniitli 

g.  g.  b.  8.  &  conv. 

at   Id.   of  0.   S.  Newell,  the. 

J.  P. 

Wty.  free. 

rung.    N.    E.    by    sd.    st.    as 
fence    now    stands    50    rds.    9 
Iks.   to   a   stone   standing  by 
Id.    of   J.    Smith,    the.    rung. 
N.  90°  E.  15  rds..  etc. 
Eeservg.  privilege  to  pass,  etc. 

The  next  conveyance  by  J.  L.  Woodman  would  place  his  name 
at  the  head  of  the  page  as  grantor,  and  the  procedure  would  be 
the  same  until  he  finally  parted  with  title.  All  the  conveyances 
made  by  the  grantor  during  the  period  in  which  he  held  title  are 
noted,  whether  they  include  the  premises  in  question  or  not,  but 
if  of  other  land,  reference  only  is  made  to  tiiem,  as  "Id.  in  Charles- 
town;"  nor  is  any  mention  made  of  defects,  dates,  etc. 

ANALYSIS   OF   ABSTRACT. 


Mr.  Lee,  in  the  appendix  to  his  valuable  work  on  abstracts,  gives 
the  following  form  of  an  analysis  of  an  abstract,  which  may  be  of 
service  to  American  practitioners  by  way  of  suggestion. 


APPENDIX. 


661 


ANALYSIS    OF    ABSTRACT. 


Estate  in  Foxbuiy, 
County  of  Devon. 


1  manor. 

1  capital  messuage  and  cottage. 

100  acres  of  land  and  right  of  common. 


Observations. 


Date,  Parties.  Parcels.      Uses,  Trusts,  Limitations,  etc.    Terms,  Incum- 
brances. 


Certificates  of 
the  baptisms 
or  births  of 
the  children 
of  Mr.  and 
Mrs.  Smith, 
should  be 
pro  d  u  c  e  d, 
and  a  decla- 
ration under 
the  Aboli- 
tion of  Oaths 
Act  made  by 
a  person  re- 
lated to  or 
a  c  q  u  ainted 
with  the  fam- 
ily, stating 
that  there 
are  but  four 
children  of 
the  m  a  r- 
riage,  should 
be  supplied; 
and  if  Mrs. 
Smith  be 
now  dead,  a 
certificate  of 
her  burial 
should  be 
furnished. 


1773.     March  1. 
John   Jones   conveys 

Manor 

House    

300  acres   

Common   right . . . 


To  Abraham  Ashford  in 
fee. 


Use   of  Ann  Downes   for 
life. 

—  as  Henry  Smith  shall 

appoint. 

—  of    Henry    Smith     in 

fee. 


1790.     May  8. 

Henry  Smith  ap- 
points same  prem- 
ises to 


Use     of     H.     Thompson 

1,000  years. 
—  of  John  Young  in  fee. 

Trust    for    A.    S.    for 

life. 
for    H.     Smith's 

children  in  fee. 


1806.     Jan.  6. 

John  Young,  Ann 
Smith,  and  four 
children,  release 
same  premises. 


to    Richard    Jenkins    in 
fee. 


Subject  to  1,000  years, 
and  right  of  Mrs. 
Smith  to  live  in  cot- 
tage for  life. 


1000  years  in 
H.  Thomp- 
son to  raise 
2.000  /.  for 
portions. 


662 


ABSTRACTS   OP    TITLE. 


Observations.   Date,    Parties,    Parcels.      Uses,  Trusts,  Limitations,  etc 


Terms,    In- 
cumbrances. 


18 15.       I  line    IH. 

Proved   20th  July,    1816. 
Richard    Jenkins 


wills  — 
Manor,    house,    cot- 
tage,   100  acres  and 
common  right. 


to  J.  Morris  and  E.  Simp- 
son. 


Trust  for  testator's  wife 
for   life,   remainder. 

for  testator's  children 

in    fee. 


Note. —  200  acres 
sold  by  Mr.  Jenkins 
during  his   life. 


2,00Gi.  paid  off. 
Term  of  1,000 
years.  A  s- 
signed  to  Oli- 
ver Pearson, 
in  trust  to  at- 
tend for  par- 
ties entitled 
under  Jenkins' 
will. 


ORDER  FOR  ABSTRACT. 

It  is  now  customary  for  the  client  to  make  and  deliver  a  formal 
written  order  when  applying  for  an  abstract  of  title.  Such  a  course 
serves  to  obviate  many  questions  that  might  arise  where  the  order 
is  given  verbally.  The  following,  taken  from  actual  practice,  will 
serve  as  an  example : 

No 


OEDER  FOR  EXAMINATION  OF  TITLE. 


Chicago, 188 

HADDOCK,  VALLETTE  &  RICKCORDS, 

Make  an  examination,  according  to  your  Indexes  to  the  Records  in  Cook 
County,  Illinois,  of  deeds,  judgments  and  tax  sales,  of  the  title  to  the  fol- 
lowing described  land,  in  Cook  County,  Illinois: 

(Here  insert  the  description  of  the 

property.)   


(Signed) 


No Street. 


LAND    MEASURES. 

In  the  preparation,  as  well  as  in  the  examination  of  abstracts  of 
title,  numerous  occasions  will  arise  for  the  computation  of  areas, 
the  measurement  of  lines  and  distances,  and  other  matters  calling 
for  calculations  based  upon  the  different  methods  now  or  formerly 
in  vogue  for  land  parceling.  To  assist  the  practitioner  by  affording 
a  ready  reference  to  the  standard  tables  of  land  measurement,  the 
following  are  inserted. 

The  measures  of  extension  sanctioned  by  law  in  the  United  States, 
conform  to  the  standard  established  by  the  English  government. 


APPENDIX.  663 

which  is  based  upon  the  phenomenon  of  nature,  that  the  force  of 
gravity  is  constant  at  the  same  point  of  the  earth's  surface  and  con- 
sequently, that  the  length  of  a  pendulum  which  oscillates  a  certain 
number  of  times,  in  a  given  period,  is  also  constant.  Had  this  unit 
been  known  before  the  adoption  and  use  of  a  system  of  measures, 
it  would  have  formed  the  natural  unit  for  division,  and  been  the 
natural  base  of  the  system  of  linear  measure.  But  the  foot  and 
inch  had  long  been  used  as  units  of  linear  measure ;  and  hence, 
the  length  of  the  pendulum,  the  new  and  invariable  standard,  was 
expressed  in  terms  of  the  known  units,  and  found  to  be  equal  to 
39.1393  inches.  The  new  unit  was  therefore  declared  invariable — 
to  contain  39.1393  equal  parts,  each  of  which  was  called  an  inch; 
12  of  these  parts  were  declared  by  act  of  Parliament  to  be  a  standard 
foot,  and  36  of  them,  an  Imperial  yard.  The  Imperial  yard  and 
the  standard  foot  are  marked  upon  a  brass  bar,  at  the  temperature 
of  62^2°,  and  these  are  the  linear  measures  from  which  those  in 
general  use  in  this  country  are  taken. 

TABLE   OF   LINEAR  MEASURE. 

12  inches   (in.)  make  1  foot,  marked    ft. 

3  feet  "  1  yard,       "         yd. 

5J  yd.,  or   16J  ft.,  "  1  rod,         "          rd. 

40  rods.  "  1  furlong,  marked    fur. 

8    furlongs,    or   320  rd.,                   "  1  statute   mile,   "      mi. 

UNIT   EQUIVALENTS. 

ft.      in. 

yd.      1  =    12 

rd.  1  =     3  =    36 

fur.      1  =        5i  =    16J  1=   198 

mi.      1  =      40  =       220  =   660  =  7920 

1  =     8  =     320  =      1760  =3  5280  =  63360 

TABLE    OF    SQUARE    MEASURE. 

144    square    inches  (sq.    in.)     make  1    square    foot,    marked sq.  ft 

9     square    feet  "  1    square    yard,       "        sq.  yd 

30J    square    yards  "  1   square    rod           ^"        sq.  rd 

40    square    rods  "  1   rood,                      "        R 

4   roods  "  1  «icre,                       "        A 

640   acres  "  1  square  mile,         "        sq.  mi 

UNIT   EQUIVALENTS. 

sq.  ft.  sq.  in. 

sq.  yd.  1  =  144 

sq.  rd.         1  =  9  =  1296 

B          1  =      30J  =  272J  =  39204 

A       i  =      40  =     1210  =  10890  =  1568160 

aq  mi    1=    4  =     160  =     4840  =  43560  =  ^6272640 

1  =  ■  640  =   2560  =  102400  =  30!)7(ii)U  =  27878400  =  4014489600 

surveyor's  measure. 

In  the  primary  division  of  the  public  lands,  and  usually  in  all 
subsequent  subdivisions  of   considerable   area,   the   measurements 


664  ABSTRACTS   OF   TITLE. 

are  made  with  what  is  called  a  Gunter's  chain,  which  consists  of  a 
metal  cliain  66  feet  long  and  composed  of  100  links.  The  chain 
employed  by  the  frovernment  in  the  execution  of  the  public  surveys 
is,  however,  66.06  in  length.  The  object  in  adding  six-hundredths 
of  a  foot  to  the  66  feet  of  the  ordinary  chain  is  to  assure  thereby 
that  66  feet  will  be  set  off  upon  the  earth's  surface  without  the 
application  of  a  greater  strain  than  al)Out  twenty  pounds  by  the 
chainmen,  thus  providing  for  loss  by  vertical  curvature  of  the 
chain,  and  at  the  same  time  avoiding  the  uncertain  results  attend- 
ing the  application  of  strains  taxing  its  elasticity. 

TAIil.K    OI-    LINKAIl    MEASURE. 

7.92  inches  ( in. )    make  1   link    1 

25      links  "  1   rod    rd. 

4      rods,  or  6G  feet,  "  1  chain   ch. 

80      chains  "  1  mile   mi. 

UNIT   EQUIVALENTS. 

1.  in. 

rd.             1  =  .  7.92 

ch.           1  =           25  =  198 

mi.        1  =         4  =          100  =  792 

1       80  =       .320  =         8000  =  63360 

In  practice  rods  are  now  seldom  used,  distances  being  taken 
in  chains  and  links.  The  foregoing  table  is  used  in  measuring 
lines  and  distances.  In  the  computation  of  areas  or  in  ascer- 
taining the  contents  of  land,  the  following  table  is  employed: 

TABLE  OF  SQUARE  MEASURE. 

625  square  links    (sq.   1.)  make  1   pole P. 

IG  poles  "  1   square   chain, sq.   ch. 

10  square  chains  "  1  acre,     A. 

640  acres  "  1  square   mile sq.   mi. 

36  square  miles    (6  mi.  square)    "  1  township,     Tp. 

UNIT   EQUIVALENTS. 

P.  sq.  I. 

sq.  ch.   =        1  =  625 

A.         1   =       16  =  1000 

sq.  mi.       1  =      10  =      160=  100000 

Tp.      1  =    640  =    6400   =    102400  =  64000000 

1  =  36  =:  23040  =3  230400  ~       3686400  ==  2304000000 

The  contents  of  land  are  usually  estimated  in  miles,  acres,  and 
hundredths. 

As  a  further  aid  in  arriving  at  a  correct  understanding  of  the 
dimensions  of  divisions  made  according  to  the  government  survey, 
a  diagram  of  a  quarter  section  of  land  is  herewith  appended,  the 
distances  being  marked  in  feet,  rods  and  chains. 

The  government  surveys  of  all  principal  base,  meridian  and 
township  lines  are  made  with  an  instrument  operating  independ- 


APPENDIX. 


665 


ently  of  the  magnetic  needle.     The  solar  compass  or  some  other 
means  of  equal  utility  must,  of  necessity,  be  used  in  such  cases.    But 

< 40  chains > 


1/5 

'■a 
o 

u 

S 


1320  ft. 

4                        « 

*•                   40  ac.                  0 

§                                   2 

80  rds. 
80  acs. 
20  chs. 

10  chs. 

4           c 

*•      lOacs.     0 

10  chs. 
20  acs. 

660  ft. 

5  chs. 
5acs. 

20  rds. 

5  acs. 
330  ft. 

<u 

I 


h  mile 


where  the  needle  can  be  relied  on  the  ordinary  surveyor 's  compass 
is  used  in  subdividing  and  meandering,    ■ 

RULES  FOR  MEASURING  LAND. 

The  following  rules  will  be  found  of  service  in  many  cases  that 
may  arise  in  land  parceling,  particularly  in  the  computation  of 
areas. 

To  find  the  area  of  a  four-sided  tract,  whose  sides  are  perpendic- 
ular to  each  other  (called  a  rectangle) : 

Multiply  the  length  by  the  breadth,  and  the  product  will  be  the 
area. 

To  find  the  area  of  a  four-sided  tract,  whose  opposite  sides  are 
parallel,  but  whose  angles  are  not  necessarily  right  angles  (called 
a  parallelogram)  : 

Multiply  the  base  by  the  perpendicular  height,  and  the  product 
will  be  the  area. 


666  ABSTRACTS   OP    TITLE. 

To  find  the  area  of  a  three-sided  tract  (called  a  triangle)  : 

Multiply  the  base  by  half  of  the  perpendicular  height,  a7id  the 
product  will  be  the  area. 

To  find  the  area  of  a  four-sided  tract,  having  two  of  its  sides 
parallel  (called  a  trapezoid)  : 

Multiply  half  the  sum  of  the  two  parallel  sides  by  the  perpen- 
dicular distance  between  those  sides,  and  the  product  will  be 
the  area. 

To  ascertain  the  contents  of  a  tract,  bounded  by  four  straight 
lines,  of  which  no  two  are  parallel  to  each  other  (called  a  trape- 
zium), and  the  length  of  each  line  is  ascertained,  and  the  two 
opposite  angles  are  supplements  of  each  other : 

Add  all  the  four  sides  together,  and  halve  their  sum;  subtract 
separately  each  s-ide  from  that  sum;  and  the  four  remainders 
thus  obtained  multiply  continually  together,  and  extract  the 
square  root  of  the  last  product.  The  residt  will  be  the  contents 
or  area  of  the  tract.  Oe,  divide  the  tract  by  lines  into  triangles 
and  trapezoids,  and  ascertain  and  add  together  their  several 
areas, — the  sum  of  which  will  be  the  area  of  the  tract  proposed. 

Land  bounded  by  an  irregular  line — as  a  stream  of  water,  or  a 
winding  road — is  measured  as  follows ;  viz. : 

Draw  a  base  line  as  7iear  as  practicable  to  the  actual  line  of  the 
road  or  stream;  and  at  different  places  in  the  base  line,  equi- 
distant from  each  other,  take  the  distance  to  the  line  of  the 
stream  or  road.  Add  the  sum  of  all  the  intermediate  lines  (or 
breadths)  to  half  the  sum  of  the  first  breadth  and  last  breadth, 
and  multiply  the  sum  thus  obtained  by  the  common  distance  be- 
tween the  breadths.  The  residt  will  be  the  area  of  the  land  in 
question. 

Should  the  breadths  be  measured  at  unequal  distances  on  the 
base  line, 

Add  all  the  breadths  together,  and  divide  their  amount  by  the 
number  of  breadths  for  the  mean  breadth,  and  multiply  the 
quotient  so  obtained  by  the  length  of  the  base  line. 

SPANISH-FRENCH    LAND   MEASURES. 

During  the  administration  of  the  Spanish-French  governors, 
in  the  province  of  Louisiana,  the  granting  power  of  the  royal 
domain  was  freely  exercised,  and  the  grants  so  made  lie  at  the 


APPENDIX. 


667 


foundation  of  many  of  the  early  titles  in  the  States  subsequently 
formed  from  that  province.^ 

The  surveys  of  these  grants  are  found  in  many  places  wrought 
in  with  our  public  surveys,  presenting,  as  it  were,  curious  mosaic 
irregularities  in  striking  contrast  with  the  simple  rectangular  sys- 
tem adopted  by  the  national  government.  They  illustrate,  in  a 
forcible  manner,  the  peculiar  agrarian  systems  of  the  governments 
which  preceded  us,  in  the  diversified,  irregular  forms  of  grants, 
from  urban  in-lots,  and  out-lots,  rural  tracts  of  inconsiderable 
dimensions,  and  from  thence  increasing  in  extent  to  7,056  arpens 
or  a  league  square,  the  "arpen"  of  Paris  being  the  standard  of 
provincial  measurement. 

The  following  is  a  comparative  statement  adopted  by  the  sur- 
veyor general's  office  at  St.  Louis,  Mo.,  of  the  land  measures  of 
the  United  States,  and  the  French  measures  formerly  used  in  the 
province  of  Louisiana: 


Linear  Measure. 

Superficial  Measure. 

French United 

Chains 

1  perch  equals 0. 

2    0. 

3    0. 

4    1. 

5    1. 

6  1 

States. 
Links. 
29.166 
58.333 
87.5 
16.661 
45.833 
75. 

04.166 
33.333 
62.5 
91.666 
83.333 
75 

66.666 
58.333 
50. 

41.666 
33.333 
25. 

16.666 
66.666 
66.666 

re 

chains. 

chains. 

French. 
Arpents 
1 
2 
3 
4 
5 
6 
7 
8 
9 

10 
100 
1000 
10,000 
Apents. 
1. 
2. 
3. 
4. 
5. 
7. 
8. 
9. 
10. 
11. 
117. 
1    175 

United  States. 
Acres. 

equivalent   to 0.85  07 

1.70  14 

2.55  21 

3.40  28 

4.25  35 

.-.  10  4-' 

7    2. 

8     2. 

9 2. 

.  .5.95  49 
.  .6.80  56 
.  .7.65  63 

10  or  one  arpent  lineal.  .  .2. 

2  arpents    5. 

3     8. 

4    11. 

.  .8.50  69 
.85.06  94 

8 

850.69  44 
,506.94  44 

5    14. 

6   17. 

7    20. 

8    23. 

9    26. 

10   29. 

100    291. 

Perches 

17.551.. 

35.102.. 

52.653.. 

70.204.. 

87.755.. 

.  .  .05.306.  . 

Acres. 

1 

2 
........3 

4 

5 

6 

1000   2916. 

22.857.. 

40.804.  . 

7 

Side   of  a   league   squa 
84     arpents    equal 2.45 

Side  of  a  mile  square. 
27   arpents   equal 80 

8 

57.959 .  . 

75,510.. 

55.102... 

9 

10 

100 

51.020.  .  . 

1000 

11  755 

10  9.04.  . 

.  .  .10,000 

Square   league. 

A    league    square    contt 

arpents  or  6,002. 50  acres. 

Scjuare  mile. 
725  arpents  32.64  perches 

aCTCH. 

ins    7,056 
etpial  640 

2  The  larger  part   of  the  southern 
and    western    portions    of    the    pres- 


ent   territory    of    the    United    States 
was  formerly  under  the  dominion  of 


668  ABSTRACTS   OF   TITLE. 

SPANISH-MEXICAN   LAND   MEASURES. 

Ky  the  treaty  of  Chuidalupe  Hidalgo,  ratified  May  30,  1848, 
and  the  treaty  commonly  known  as  the  Gadsden  Purchase,  rati- 
fied June  30,  1854,  the  Mexican  Republic  ceded  to  the  United 
States  the  territory  embraced  within  the  present  limits  of  the 
States  of  California,  Nevada,  Utah  and  Arizona,  and  parts  of 
the  States  of  Colorado,  New  Mexico  and  Wyoming.  Scattered 
over  this  district  there  exist  many  ancient  Spanish-Mexican  titles, 
municipal  and  rural,  which,  under  the  terms  of  the  treaties,  are 
recognized  and  protected  by  the  government.  These  claims  and 
grants  are  for  irregular  shaped  tracts,  illy  defined,  and  bounded 
mainly  by  natural  objects.  They  were  made  for  agriculture, 
mining,  stock-raising,  and  colonization,  and  in  all  sizes,  from  a 
village  lot  to  a  million-acre  tract.  Upon  confirmation  it  is  neces- 
sary to  have  these  titles  traced  out  and  fixed,  by  survey  or  re- 
survey,  according  to  the  peculiarities  of  the  system  of  the  govern- 
ment from  which  they  originated,  and  incidentally  they  must 
frequently  be  referred  to  in  subsequent  conveyances  and  subdi- 
visions. 

The  Surveyor  General  of  California,  in  a  report  made  in  1851, 
states  that  all  grants  in  California,  made  either  by  the  Spanish 
government,  or  that  of  Mexico,  refer  to  the  "vara"  of  Mexico  as 

Spain  and  France,  and  both  govern-  lie    domain,    subject    to    the    survey, 

ments    made     numerous     grants    and  settlement    and    disposition    laws    of 

concessions    both    to    companies    and  the    United    States    when    the    same 

individuals.     In  1803  the  province  of  were    extended    over   the    several   po- 

Louisiana    was    ceded    by    France    to  litical    divisions    from    time    to    time 

the    United    States,    though    it    was  by   separate   acts   of   Congress.     But 

not  until  many  years  afterward  that  all  claims   which   had   their  origin  in 

the  boundaries  of  the  province  were  some  form  of  concession  from  a  for- 

dofinitely   established.  cign   government  before   the   acquisi- 

The  Louisiana  Purchase  was  erected  tion   of  the   territory  by  the  United 

into   two   territories   by   act   of   Con-  States  are   recognized   and  protected 

gross,    March    26,    1804,    one    called  and    after   confirmation   the   titles  to 

the    Territory    of    Orleans    and    the  lands  so   acquired   liave  much   of  the 

otlier  the  District  of  Louisiana.     The  stability    of    titles   derived    from    the 

Territory    of    Orleans,    on    April    30,  United    States. 

1812,  became  the  State  of  Louisiana.  The    grants    by    the    Spanish    and 

The  entire  Louisiana  purchase,  be-  French    governors    lie    mainly    within 

ing  five  times  greater  than  the  area  what   are   now   the   States   of  Louis- 

of  France,  viz.,  201,900  square  miles,  iana,    Missouri    and    Iowa.      In    the 

excepting    certain    grants    made    by  State    of   Louisiana    alone    there   are 

French   and   Spanish   authorities,  and  upward    of    ten    thousand    confirmed 

other   legal    exceptions,    became    pub-  private  laud   claims. 


APPENDIX. 


669 


the  measure  of  length,  and  that  by  common  consent,  in  California, 
that  measure  is  considered  as  exactly  equivalent  to  thirty-three 
American  inches.^  It  would  seem  that  another  length  is  given  to 
the  "vara"  by  Mr.  Alexander,*  who  states  its  length  to  be  equal 
to  92.741  of  the  American  yard.  In  practice,  however,  the  Gen- 
eral Land  Office  has  sanctioned  the  recognition,  in  California,  of 
the  Mexican  vara  as  being  ecjuivalent  to  thirty-three  American 
inches. 

The  following  is  a  table  of  land  measures  adopted  by  the  Mexi- 
can government  :^ 


Names  of  the  measures. 


Sitio  de  ganado  moyer 

Criadero   de  ganado   moyer. 

Sitio  de  ganado  menor 

Criadero  de   ganado  menor. 
Caballeria  de  tierra 


Media  caballeria 

Cuarto  caballeria  o  Suerte  de 
tierra     


de     sembraduro    de 


Fenega 

maiz     

Sala  para  casa 

Fundo  legal  para  pueblos. 


Figures   of   the 
measures. 


Square     

do 

do 

....do 

Right-a  n  g  1  e  d 
parallelogram. 

Square     


Right-a  n  g  1  e  d 
parallelogram. 


....do. 
Square 
....do. 


c  5.5 


5,000 
2,500 
3,333  J^ 
1,666  J^ 
1,104 

652 

552 


376 
50 

1,200 


n 


5,000 
2,500 
3,333'/^ 
1,606?^ 
552 

552 

276 


184 

50 

1,200 


25,000,000 
6,250,000 

11,111,111',/b 

2,777,777V» 

609,408 

304,704 

152,353 


56,784 

2,500 

1,440,000 


41,023 

10,255 

18,232 

4,558 

1 


Vl2 

0,004 
2,03fi 


The  Mexican  vara  is  the  unit  of  all  the  measures  of  length,  the 
pattern  and  size  of  which  are  taken  from  the  Castilian  vara  of  the 
mark  of  Burgos,  and  is  the  legal  vara  used  in  the  Mexican  repub- 
lic. Fifty  Mexican  varas  make  a  measure  which  is  called  cordel, 
which  instrument  is  used  in  measuring  lands. 

The  legal  league  contains  100  cordels,  or  5,000  varas,  which  is 
found  by  multiplying  by  100  the  50  varas  contained  in  a  cordel. 
The  league  is  divided  into  two  halves  and  four  quarters,  this  being 
the  only  division  made  of  it.  Half  a  league  contains  2,500  varas, 
and  a  quarter  of  a  league  1,250  varas.  Anciently,  the  Mexican 
league  was  divided  into  three  miles,  the  mile  into  a  thousand  paces 
of  Solomon,  and  one  of  these  paces  into  five-thirds  of  a  Mexican 
vara;  consequently  the  league  had  3,000  paces  of  Solomon.  This 
division  is  recognized  in  legal  affairs,  but  has  been  a  very  long 


3Eep.    Genl.    Land    Office,    1854. 

4  Dictionary  of  Weights  and  Meas- 
ures. 

5  Translated    from   the    ' '  Ordenan- 


zas  de  Tierras  y  Agnas"  by  Galvan, 
Ed.  1884;  and  see  Ex.  Doc.  No.  17, 
1st  Ses.sion,  31st  Congress,  House. 


670  ABSTRACTS   OF    TITLE. 

time  in  disuse — the  sjime  as  the  pace  of  Solomon,  which  in  those 
(lays  was  called  vara,  and  was  used  for  measuring  lands.  The 
))iork  was  equivalent  to  two  varas  and  seven-eighths — that  is,  eight 
marks  containing  twenty-three  varas— and  was  used  for  measur- 
ing lands. 

The  United  States  owned  no  public  laud  in  Texas.  Upon  its 
admission  iulo  the  Union  the  title  to  the  soil  was  retained  by  the 
State  and  its  lands  were  disposed  of  under  its  own  laws.  The 
methods  of  land  parceling  followed,  in  most  respects,  those  in 
vogue  while  the  State  was  a  part  of  the  Mexican  Republic.  A 
table  of  land  measures  is  appended. 


APPENDIX. 


671 


C  ^    W  Jin    ^1    C5    po  JO    C<i    1— '    Oi 

■^  to   hP*.   CO  "bo  bi  ^^^  't^^   w   w  "bi   o  o  ~o 

o,^  tomoo^'-^iooicooooo 

aj    T  _Cn  Jlpi  j-"  ^    OJ    tNi  jr>    Oi  JO    CO    o    o    o    o 

„  "b:  a>  ci  "ro  *»■  "co  lo  ci  ^o  Ic  o  "o  o  "o 

2.    33  i<^OOOOOOOOWOOOO 

^g  cnoooooooowoooo 


•3>-!-1'-l'-<-<-l-1'-)-l'-|"j>1-1 

PPPPPPPPPPPPPP 


U3 

03 

'Jl 

CO 

tc 

u; 

■^  - 

Cii 

M 

!/l 

tc 

CO 

CO 

^ 

H 

« 

>a 

>a>£)U2hQ>i2hQ>0>0>^hQ>i3>a 

►a 

> 

w 

c 

p 

r^ 

C 

3 

;^ 

3 

3 

3 

c 

3 

C 

22 

I 

W 

^tfa 

p 

p 

P 

P 

P 

P 

P 

P 

P 

p 

P 

P 

p 

p 

P 

•-I 

1 

■I 

M 

-i 

"-t 

M 

"1 

•-5 

■-) 

i-j 

1 

-1 

»^ 

OS 

M 

n 

(t 

re 

re 

re 

re 

re 

re 

re 

re 

re 

re 

re 

re 

03 

3 

o 

o 

o 

o 

o 

o 

o 

o 

o 

O 

o 

o 

o 

o 

UH 

> 

*< 

<-•> 

»-+» 

«. 

^ 

•■^ 

JO 

o 

to 

to 

w 

!_, 

Ox 

S3 

GC 

S 

o 

*. 

o 

ro 

w 

CO 

Oi 

Oi   ~ 

Ol 

00 

v\ 

o  " 

o 

s 

as 

t-^ 

5 

■^i 

^1 

-~i 

oi 

i(^ 

o 

to 

:o 

o 

CO 

w 

o 

o 

Ul 

o« 

10 

o 

)(>■ 

o 

GO 

30 

o 

05 

in 

CD 

o 

CO 

t> 

o 

If' 

QD 

--I 

w 

^ 
O 

>-l» 

^ 

■^ 

< 

<t 

< 

< 

< 

< 

<1 

< 

< 

<! 

< 

«« 

(—1 

g 

CD 

P 

p 

p 

p 

p 

P 

P 

P 

p 

P 

p 

P 

p 

p 

"co 

o 
o 

►Q 

■-) 

-1 

>1 

l-I 

"1 

I 

"I 

1 

1 

1 

1 

"1 

■1 

1-1 

3 

P 

p 

p 

p 

p 

P 

P 

P 

p 

P 

p 

P 

p 

p 

tr| 

aa 

X 

/: 

yj 

Jl 

/] 

U) 

M 

XI 

CO 

CO 

CO 

11 

II 

r 

r 

T~ 

r 

T~ 

T 

r 

r 

H 

II 

bo 

< 

*. 

1—    or**   iWK   MH 

**'   MH    BH 

p 

to 

00 

o 

Oi 

J) 

re 

re 

re 
re 

re 

re     re    re    re 
P    p    p     P 
(IQ    35    35    05 

O 

re* 
P 
00 

►1 
p 

g 

M 

W 

B 
c 

<-»■ 

a: 

c 
p 

3 

O 

re 
o' 

s 

5' 

3 

3 

5' 
3 

5' 

3 

re 

re 

re 

3 

re 

1 

c 
o 

p 

a 

•^ 

M 

>-< 

p 

r+- 

•-f 

(B 

3" 

g- 

p" 

II 

II 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

1 

i 

in- 

o  ^ 

(^ 

lU 

CO 

11 

ta-i 

w 

31 

O 

o 

— 1 

*^ 

o  ~ 

^ 

mmi 

"a 

1^ 

» 

3i 

■a 

4- 

35 

» 

o 

-1 

to 

•^ 

o 

^ 

o 

O 

O 

=> 

O 

=> 

p 

-~i 

35 

;^ 

» 

-4 

Ul 

►—  I— '  to  it».  1^  en 


pppppppp 


re 

re 

re 

re 

re 

re 

re 

re 

CO 

ao 

en 

CO 

C/J 

to 

lA 

It  will  be  observed  that  the  Texan  vara  is  slightly  longer  than 
the  standard  recognized  in  California  and  adopted  by  the  General 
Land  Office. 


TABLE  OF  CASES 


[the  references  are  to  pages.] 


Abbot  V.  Wilbur,  40. 

Abbott  V.   Holway,   Adm'r,  246,   247, 

248. 
Abbott  V,  Smelting  Co.,  276. 
Abbott  V.  Semple,  527. 
Abbott  V.  Doling,  558,  567. 
Abell  V.  Lathrop,  23. 
Abercrombie  v.  Abererombie,  408. 
Abney  v.  Moore,  247. 
Acer  V,  Westcott,  64,  193. 
Actor  V.  Hoyt,  449. 
Adam  v.  Norris,  156. 
Adams  v.  Morse,  194. 
Adams  v.  Buchanan,  303. 
Adams  v.  Jones,  586. 
Adams  v.  Frothingham,  46. 
Adams  v.  Adams,  519. 
Adams  v.  Medsker,  214. 
Adams  v.  Cowles,  526. 
Adington  v.  Hefner,  397. 
Adrain  v.  Shaw,  23. 
Aetna  Ins.  Co.  v.  Hesser,  471,  488. 
Agricultural  Ass'n  v.  Neill,  210. 
Agricultural  Society  v.  Paddock,  279. 
Aiken  v.  E.  R.  Co.,  374. 
Aiken  v.  Morse,  583. 
Akers  v.  Akers,  414. 
Akers  v.  Clark,  411. 
Albee  v.  Ward,  509. 
Alexander  v.  Tolleston  Club,  277. 
Alexander  v.  Stewart,  607. 
Alexander  v.  State,  44. 
Allaire  v.  Allaire,  441-444. 
AUard  v.  Lane,  398. 
Allen  V.  Hawley,  22. 
Allen  V.  Bates,  191. 
Allen  V.  Holton,  239. 
Allen  V.  Sales,  302. 
Allen  V.  Woodruff,  344. 
Allen  V.  Culver,  352. 
Allen  V.  Loring,  452. 


Allen  V.  Morris,  458. 

Allen  V.  Cole,  497. 

Allen  V.  Poole,  582. 

Allen  V.  McGaughey,  493. 

AUen  V.  Smith,  534. 

Allen  V.  Armstrong,  564,  565. 

Alexander  v.  Alexander,  208. 

Alexander  v.  Tolleston  Club,  277. 

AUie  V.  Schmitz,  537. 

AlUson  V.  Hunter,  141- 

Allison  V.  Thomas,  485. 

Allman  v.  Taylor,  501,  502. 

Almy  V.  Hunt,  450. 

Almond  v.  Almond,  460. 

Alt  V,  Banholzer,  546. 

Altes  V.  Hinckler,  554. 

Alton  V.  Transportation  Co.,  230. 

Alton  Ins.  Co.  v.  Buckmaster,  535. 

AUwood  V.  Mansfield,  458. 

Am.  Bible  Society  v.  Sherwood,  279. 

Am.  Emigrant  Co.  v.  Clark,  188. 

Ambrose  v.  Ealey,  602. 

Amesti  v.  Castro,  51,  535. 

Amphlet  v.  Hibbard,  385,  386. 

Anderson  v.  McGowan,  320. 

Anderson  v.  Culbert,  386. 

Anderson  v.  Grable,  430. 

Anderson  v.  Donnell,  453. 

Anderson  v.  Arnette,  527. 

Anderson  v.  Tuck,  470. 

Anderson  v.  Kerns  Draining  Co.,  551. 

Andrews  v.  Applegate,  417. 

Annan  v.  Baker,  567,  569. 

Anthony  v.  Taylor,  488. 

Anthony  v.  Bank,  281. 

Apperson  v.  Burgett,  469. 

Apperson  v.  Bolton,  442. 

Appleby 's  Estate,  262. 

Applegate  v.  Edwards,  468. 

Aquire  v.  Alexander,  610. 

Arbuckle  v.  Ward,  611. 


Warvelle  Abs. — 43 


673 


674 


TABLE   OF    CASES. 


[THE   REFERENCES 

Arinstroug  v.  Stovall,  214. 
Armstrong  v.  Koss,  267. 
Armstroug  v.  Lear,  440. 
Armeutrout 's    Exr.    v.    Gibbons,    376, 

377. 
Arnold  v.  Arnold,  263. 
Arnold  v.  Chesebrough,  591. 
Arnold  v.  Nye,  476. 
Arnold  &  Co.  v.  Burner,  8. 
Arthur  v.  Anderson,  214. 
Arthur  v.  Cole,  425. 
Arthur  v.  Webster,  182,  274. 
Ashburn  v.  Spivey,  71. 
Ashcroft  V.  liy.  Co.,  195. 
Askew  V.  Dupree,  591. 
Aston   V.   Galloway,  431. 
Astor  V.  Hoyt,  370. 
Astrom  v.  Hammond,  113. 
Atherton  v.  Fowler,  115. 
Atkins  V.  Kinman,  300,  566. 
Atkins  V.  Hinman,  301,  554. 
Atkins  V.  Horde,  534. 
Atkinson  v.  Greaves,  400. 
Atlanta  Mills  v.  Mason,  27. 
Atlanta  Dock  Co.  v.  Leavitt,  41,  197. 
Attorney  General  v.  Garrison,  297. 
Attorney    General    v.    Plankroad    Co., 

552. 
Atwood  V.  Wright,  493. 
Augustine  v.  Doud,  500. 
Aultman  v.  Obermeyer,  265. 
Austin  V.  Cambridgeport,  354,  426. 
Austin  V.   Bainter,   530. 
Austin  V.  Wohler,  639. 
Austin  V.  Bailey,  576. 
Austin  V.  Downer,  376. 
Aven  V.  Beckom,  301. 
Avery  v.  Babcock,  472. 
Ayer  v,  Ayer,  420. 
Ayers  v.  Hays,  395,  401. 
Ayling  v.  Kramer,  197. 

Babbidge  v.  Astoria,  360. 

Babbit  v.  Bowen,  596. 

Babowski  v.  Babowski,  481. 

Babcock  v.  Jones,  471. 

Bachman  v.  Sepulveda,  482. 

Bacon  v.  Van  Schoonhover,  395,  398. 

Badger  v.  Daniel,  458. 

Bangel  v.  Brodrick,  28,  29,  112,  141. 

Bailey  v.  Kilburn,  182. 


ARE  TO  PAGES.] 

Bailey  v.  Litten,  269. 

Bailey  v.  Doolittle,  560. 

Bailey  v.  Smith,  395. 

Bailey  v.  Bailey,  297. 

Baird  v.  Wolf,  112,  141. 

Baker  v.  Stewart,  264, 

Baker   v.   Bartlett,   460. 

Baker  v.  Bridge,  423. 

Baker  v.  Chandler,  467. 

Baker  v.  Hale,  607. 

Baker  v.  Hunt,  222. 

Baker  v.  Scott,  414. 

Baker  v.  Lane,  566. 

Baker  v.  Swan,  604. 

Baker  v.  Neff,  277,  279. 

Balcum  v.  Wood,  23,  385,  386. 

Baldwin  v.  Sager,  395. 

Baldwin  v.  Pool,  340. 

Bales  V.  Perry,  311. 

Ballou  V.  Lucas,  236. 

Ballame  v.  Forsythe,  560. 

Ballance  v.  Peoria,  49. 

Ballance  v.  Tesson,  146. 

Bank  v.  Abstract  Co.,  13. 

Bank  v.  Mathews,  277. 

Bank  v.  Schott,  284. 

Bank  v.  Sherman,  333. 

Bank  v.  Bankon,  388. 

Bank  v.  Anderson,  395. 

Bank  v.  Stone,  337. 

Bank  v.  Drummond,  376. 

Bank  v.  Clapp,  386. 

Bank  v.  Green,  22. 

Bank  v.  Garhind,  472. 

Bank  v.  Humphreys,  504,  528. 

Bank  v.  Kortright,  281. 

Bank  v.  Lanahan,  371. 

Bank  v.  Lyons,  23. 

Bank  v.  Rice,  214. 

Bank  v.  Ward,  7,  8,  645,  646,  656. 

Bank  v.  Willis,  325. 

Banks  v.  Haskie,  352. 

Banker  v.  Caldwell,  6. 

Bankers,  etc.  Co.  v.  Blair,  484. 

Barber  v.  Roarbeck,  22. 

Barber  v.  Harris,  250. 

Barber  v.  Guaranty  Co.,  63. 

Barber  v.  Barber,  545. 

Barbour  v.  Mfg.  Co.,  399. 

Barbour  v.  Gates,  210. 

Barclay  v.  Plant,  265. 


TABLE   OF    CASES. 


675 


[the  references 
Bardslej  v.  Hines,  525, 
Barling  v.  Peters,  504. 
Barheydt  v.  Barheydt,  423. 
Barker  v.  Ky.  Co.,  190. 
Barker  v.  Barker,  511,  520. 
Barker  v.  Comins,  441. 
Barker  v.  Dayton,  18. 
Barker  v.  Ins.  Co.,  524,  526, 
Barlow  v.  Stanford,  502, 
Barnard  v.  Campan,  65,  69. 
Barnhart  v.  Campbell,  271. 
Barnhizel  v,  Terrell,  34. 
Barnet  v.  Mendenhall,  23. 
Barnet  v.  Proskauer,  204. 
Barnet  v.  Lachman,  182,  274. 
Barnet  v.  Newark,  357. 
Barney  v.  Keokuk,  49,  160. 
Barney  v.  Little,  73. 
Barrett  v.  Messner,  22. 
Barron  v.  MuUin,  493. 
Barron  v.  Robbins,  535. 
Barry  v.  Edlavitch,  27, 
Barry  v.  Gamble,  157, 
Barter  v.  Greenleaf,  187. 
Bartlett  v.  King,  411, 
Barton  v.  Moss,  560. 
Bass  V.  EstiU,  69,  205. 
Bassett  v,  Bassett,  187. 
Bassett  v.  Budlong,  228. 
Bassett  v.  Lockhard,  493,  494. 
Bassler  v.  Eewolinski,  271. 
Batchelder  v.  Keniston,  47. 
Bateman's  Petition,  268. 
Bates  V.  Norcross,  42, 
Bates  V,  Spooner,  479. 
Bates  V.  State  Bank,  484,  488. 
Bates  V,  Shrader,  575, 
Bates  V,  Ableman,  327. 
Bates  V.  Seely,  264, 
Batesville  Inst.  v.  Kauffman,  297. 
Bauer  v.  Gattmanhausen,  78. 
Baugher  v.  Merryman,  376. 
Baxter  v.  Arnold,  171. 
Bayliss  v.  Williams,  187. 
Beacroft  v.  Strawn,  418. 
Beach  v,  Beaton,  324. 
Beadles  v.  Fry,  474, 
Beall  V.  White,  387. 
Beal  V,  Blair,  220. 
Bean  v.  People,  61,  62. 
Bear  Lake  etc.  Co.  v.  Garland,  387. 


ARE  TO  PAGES.] 

Bearss  v.  Ford,  369,  371,  375, 

Beasley  v.  Howell,  602. 

Beatty  v.  Kurtz,  177. 

Beatty  v.  Mason,  601. 

Beatty  v.  Dixon,  519. 

Beaufort  v,  Duncan,  360. 

Becker  v.  Howard,  561. 

Bedell  v.  Shaw,  606. 

Beebe  v.  Morrell,  70. 

Beecher  v.  Hicks,  189,  251. 

Beekman  v.  Frost,  388. 

Beekman  v.  Bingham,  569. 

Belcher  v.  Branch,  320. 

Belden  v.  Meeker,  36,  441,  482,  483. 

Bell  V,  Duncan,  157. 

Bell  V.  Hearne,  124. 

Bell  V.  Boston,  222, 

Bell  V,  Twilight,  239, 

Bell  V.  Humphrey,  408,  411, 

Bell  V.  Simpson,  394. 

Bell  V.  Farmers'  Bank,  207. 

Bell  V.  Longworth,  604. 

Bellows  V.  Todd,  114,  142. 

Belslay  v.  Engle,  189. 

Belt  V,  Abstract  Co.,  61. 

Beman  v.  Green,  342. 

Bemis  v.  Becker,  341. 

Benkert  v.  Jacoby,  420. 

Bennett  v.   Saloman,   395. 

Bennett  v.  State,  487, 

Bennett  v.  Whitman,  519. 

Bennett  v.  Nichols,  518. 

Bennett  v.  McFadden,  519. 

Bennett  v.  Waller,  240,  540. 

Bennett  v.  Williams,  522. 

Benoist  v.  Carondelet,  282. 

Benson  v.  Morrow,  46,  160. 

Benson  v.  Humphreys,  218. 

Bently  v.  Deforest,  245. 

Bergan  v.  Cahill,  407. 

Berger  v.  Bennett,  393. 

Bergman's  Appeal,  487. 

Berlin  v.  Melhom,  502,  503,  504. 

Bernhart  v.  Brown,  282,  471. 

Berry  v.  Derwart,  190. 

Berryhill  v.  Dyer,  525. 

Bertles  v.  Nunan,  263,  264. 

Besore  v.  Dosh,  563. 

Bessemer  v.  People,  523,  524. 

Best  V.  Gholson,  386. 

Bethel  v.  Bethel,  233,  500,  505, 


676 


TABLE   OP    CASES. 


[tue  references 

Betsey  v.  Torrauce,  254. 

Betsinger  v.  Chapman,  590. 

Beverly  v.  Brooke,  604. 

Beygeh  v.  Chicago,  498. 

Bickford  v.  Stewart,  30,  575. 

Bickncll  v.  Bicknell,  344. 

Bicdlor  v.  Biedler,  411. 

Biglow  V.  Forest,  57. 

Biglow  V.  Gilbert,  433. 

Biglow  V.  Wilson,  461. 

Bill  V.  Mason,  453. 

Billings  V.  Stark,  208. 

Binghamton  Bridge  ease,  146. 

Binkert  v.  Wabash  R'y,  553,  557. 

Birdsall  v.  Hewlett,  431. 

Birdsall  v.  Russell,  65,  67. 

Biscoe  V.  Coulter,  565. 

Bishop  V.  O'Connor,  300,  320,  581. 

Bishop  V.  Morgan,  191. 

Bishop  V.  Schneider,  69,  72. 

Bivard  v.  Walker,  207. 

Black  V.  Gregg,  384. 

Blackaby  v.  Blackaby,  607. 

Blackwell  v.  Barnett,  397. 

Blackburn  v.  Crawford 's  Lessee,  590, 

625. 
Blackwood  v.  A^an  Vliet,  556. 
Blacklaws  v.  Milne,  584. 
Blair  v.  Osborne,  183. 
Blair  v.  Vanblarcum,  251,  426. 
Blair  v.  Ostrander,  468. 
Blaisdell  v.  Morse,  215. 
Blake  v.  Williams,  394. 
Blake  v.  Shaw,  461. 
Blake  v.  Stone,  414. 
Blake  v.  Fish,  184. 
Blake  v.  O  'Neal,  609. 
Blnkely  v.  Bestor,  566,  569. 
Blaggo  V.  Miles,  422. 
Rlanchard  v.  Ware,  522. 
Blnnchard  v.  Strait,  523. 
Blanchard  v.  Maynard,  408. 
Blanchard  v.  Bissell,  360. 
Blanchard  v.  Brooks,  239. 
Bland  v.  Muncaster,  501. 
Blankenship  v.  Blankenship,  481. 
Blauvelt  v.  Ackerman,  322. 
Blayton  v.  Merett,  292. 
Bletch  V.  Johnson,  485. 
Blinn  v.  Chessman,  216. 
Bliss  V.  Johnson,  603. 


ARE  TO   PAGE.S.] 

Blodget  V.  Hitt,  497,  498,  514. 

Blood  V.  Blood,  69. 

Blood  V.  Light,  492. 

Bloomlield  R.  R.  Co.  v.  Burgess,  485. 

Boardman  v.  Bourne,  566. 

Board  man  v.  Roed,  158. 

Boa/,  V.  Swinney,  579. 

Bobb  V.  Bobb,  186. 

Bodine  v.  Arthur,  251. 

Boerum  v.  Schenck,  322,  323. 

Bohn  V.  Barrett's  Exr.,  412,  426. 

Bogardus  v.  Trinity  Ch.,  606. 

Bogert  V.  Elizabeth,  637. 

Bogy  V.  Shoab,  239. 

Bohn  V.  Barrett's  Exrs.  412. 

Bohon  V.  Bohon,  246,  288. 

Bonewits  v.  Wygant,  48. 

Bonncll  v.  Holt,  453. 

Booker  v.  Warrill,  265. 

Boorman  v.  Sunnucks,  48,  170. 

Boon  V.  Pierpont,  380. 

Booth  V.  Phelps,  13. 

Booth  V.  Cook,  204. 

Booth  V.  Small,  601. 

Boothroyd  v.  Engle,  201. 

Boreel  v.  Lawton,  353. 

Borders  v.  Murphy,  524. 

Borland  v.  Walrath,  206. 

Bostick  V.  Blades,  424,  425. 

Bostwick  V.  Powers,  73. 

Bottineau  v.  Ins.  Co.,  498. 

Botsford  V.  Wilson,  236. 

Botsford  V.  O'Connor,  513,  514,  525. 

Bougere,  Succession  of,  582. 

Bourland  v.  Peoria,  66. 

Bowden  v.  Henderson,  586. 

Bowers  v.  Oyster,  344. 

Bowers  v.  Kuscher,  116. 

Bowers  v.  Andrews,  220. 

Bowen  v.  Wickersham,  483. 

Bowen  v.  Bond,  511. 

Bowen  v.  Preston,  612. 

Bowen  v.  Bonner,  496. 

Bowen  v.  Thrall,  239. 

Bowin  V.  Sutherland,  527. 

Bowlin  V.  Pearson,  452. 

Bowman  v.  Davis,  301. 

Bowman  v.  Wettig,  570, 

Bowman  v.  Lee,  601,  606. 

Bowman  v.  Thompson,  555. 

Bowman  v.  People,  495. 


TABLE   OF    CASES. 


677 


[the  references 
Bowman  v.  Cockerill,  566. 
Boyd  V.  Slayback,  208. 
Boyd  V.  Ins.  Co.,  586. 
Boylan  v.  Warren,  61. 
Boyland  v.  Boyland,  525. 
Boynton  v.  Hubbard,  288. 
Boynton  v.  Eees,  187. 
Bozza  V.  Rowe,  505. 
Brackett   v.   Gilmore,   563. 
Bradbury  v.  Falmouth,  67. 
Bradford  v.  Howell,  189. 
Bradstreet  v.  Clark,  253,  410. 
Bradshaw  v.  Bradshaw,  218. 
Bradshaw  v.  Bradbury,  192. 
Brady  v.  Spruck,  235. 
Bramberry's  appeal,  264. 
Brame  v.  Craig,  22. 
Branch  v.  Lowery,  467. 
Brannan  v.  Brannan,  227. 
Brannan  v.  May,  580. 
Branger  v.  Lucy,  582. 
Brantly  v.  Cheeley,  323. 
Brashear  v.  Connor,  596. 
Brattle  Sq.  Ch.  v.  Grant,  354. 
Bray  v.  Adams,  192. 
Braxton  v.  Bressler,  46, 
Breckenridge  v.  Tood,  184,  209. 
Bree  v.  Bree,  489. 
Brennan  v.  Wilson,  308,  328. 
Brewer  v.  State,  590. 
Brewer  v.  Watson,  60,  61. 
Brewster  v.  Hardy,  245. 
Brewster  v.  Madden,  116. 
Brewton  v.  Watson,  188. 
Brice's  Estate,   590. 
Bridge  v.  Wellington,  188,  233, 
Briggs  V.  Davis,  329. 
Brightman  v.  Brightman,  460, 
Brine  v.  Ins.  Co.,  29. 
Brinkerhoff  v.  Lansing,  533. 
Britton  v.  Lorentz,  327. 
Brock  V.  Frank,  441,  442. 
Brolasky  v.  Furey,  208. 
Bromley  v.  Goodrich,  232. 
Bronson  v.  Kukuk,  112. 
Bronson  v.  Kinzie,  29. 
Brodie  v.  Watkins,  188,  233. 
Brown  v,  Sims,  9. 
Brown  v.  Renshaw,  218. 
Brown  v.  Farran,  225. 
Brown  v.  Atwater,  247. 


ARE  TO  PAGES.] 

Brown  v.  Dean,  376. 
Brown  v.  Clark,  434. 
Brown  v.  Goodwin,  458. 
Brown  v.  Pierce,  467. 
Brown  v.  Gilmor,  504, 
Brown  v.  Delaney,  394. 
Brown  v.  Thorndike,  412. 
Brown  v.  Jewett,  586. 
Brown  v.  Cockerill,  603. 
Brown  v.  Coble,  605. 
Brown  v.  Brown,  425. 
Brown  v.  Smith,  456. 
Brown  v,  Phil.  Bank,  204. 
Brown  v.  Parker,  476,  499,  524. 
Brown  v.  Rose,  613, 
Brown  v.  Thompson,  210. 
Brown  v.  Coal  Oil  Co.,  235, 
Brown  v.  Pforr,  291, 
Brown  v.  Brown,  231. 
Brown  v.  Throckmorton,  116. 
Brown  v.  United  States,  57, 
Brown  v.  Chamberlin,  328. 
Brown  v.  Jackson,  239. 
Brown  v.  Manter,  188. 
Browne  v.  Ferrea,  493. 
Browning  v.  Howard,  502. 
Browning  v.  Harris,  385. 
Brownfield  v.  Wilson,  408,  415. 
Brownfield  v.  Dyer,  525. 
Brookbank  v.  Kernard,  265, 
Brooks  V,  Bruyn,  604,  606. 
Brooks  V.  Rooney,  496. 
Brooks  V.  Curtiss,  27. 
Brooks  V.  Chappel,  519. 
Bruce  v.  Luke,  42. 
Brunswick  v.  Grossman,  422. 
Brush  V.  Ware,  65. 
Brush  V,  Beecher,  353. 
Bryant  v.  Christian,  421. 
Bryan  v.  Ramirez,  205,  226. 
Bryne  v.  Morehouse,  193. 
Buchan  v.  Hart,  297. 
Buchanan  v.  Curtis,  50. 
Bucher  v.  Wetherby,  128. 
Buck  V.  Collins,  41,  61,  62, 
Buckner  v.  Street,  240, 
Buckingham  v,  Jacques,  32,  580. 
Buckingham  v.  Wesson,  316. 
Bucklen  v.  Hasterlik,  205. 
Buckley  v.  Gray,  656. 
Buckmaster  v.  Ryder,  535. 


678 


TABLE  OF  CASES. 


[thk  references 
Buffalo  V.  Webster,  357. 
Bull  V.  "Willarcl,  339. 
Bull  V.  Bull,  427. 

Bullock  V.  Battenhousen,  381,  388. 
Bullock  V.  Wilson,  112. 
Bunco  V.  Reed,  499. 
Bunch  V.  Hardy,  250. 
Buudy  V.  Ophir  Iron  Co.,  207. 
Bunker  v.  Green,  211. 
Burch  V.  Carter,  452. 
Burch  V.  Burch,  405,  431. 
Burdens  v.  Amperse,  261. 
Burdick  v.  Wentworth,  113. 
Burdick  v.  Briggs,  112,  546. 
Burgess  v.  Gray,  116. 
Burgett  V.  Paxton,  466. 
Burke  v.  Stokely,  476. 
Burkholder  v.  Cased,  207. 
Burlen  v.  Shannon,  41. 
Burleigh  v.  Clough,  21,  418,  420. 
Burlington  University  v.  Barrett,  435. 
Burnet  v.  Pratt,  270. 
Burnet  v.  Burnet,  433. 
Burns  v.  Ross,  487. 
Burnside  v.  Merrick,  273. 
Burr  V,  Borden,  497. 
Burr  V.  Mueller,  272. 
Burrows  v.  Bailey,  322. 
Burton  v.  LeRoy,  202. 
Burton  v.  Tuite,  62,  63. 
Burtners  v.  Keran,  41. 
Burwell  v.  Jackson,  345. 
Buseh  V.  Donohue,  116,  147. 
Busch  V.  Huston,  560. 
Bush  V.  Scott,  477. 
Bush  V.  Stevens,  187. 
Bussey  v.  Hardin,  504. 
Bushnell  v.  Harford,  533. 
Bustamete  v.  Bescher,  526. 
Butcher  v.  Rogers,  188. 
Butler's  Appeal,  552. 
Butler  V.  Davis,  220. 
Butler  V.  Lee,  478. 
Butler  V.  Haynes,  496. 
Butler  V.  Fitzgerald,  500. 
Butler  V.  Roys,  271. 
Butler  V.  Huestis,  189,  407,  408,  414, 

415,  416. 
Butterfield  v.  Haskins,  419. 
Butterworth  v.  Crawford,  641. 
Button  V.  Am.  Tract  Society,  428. 


ARE  TO  PAGES.] 

Button  V.  Schroyer,  340. 
Byars  v.  Spencer,  207. 
Byrne  v.  Roberts,  525. 
Byrnes  v.  Palmer,  645. 

C.  P.  R.  R.  Co.  V.  Beal,  217. 

Caal  V.  Higgins,  18,  634. 

Cabcen  v.  Breckenridge,  66. 

Cable's  Appeal,  429,  431. 

Caday  v.  Eighmey,  118. 

Cady  V.  Purser,  69. 

Cady  .v.  Shepard,  274. 

Cady  V.  Smith,  467. 

Cahill  v.  Palmer,  GOl,  602. 

Gaboon  v.  Coe,  558. 

Calanan  v.  Hurley,  565. 

Calcord  v.  Alexander,  219. 

Calder  v.  Chapman,  90. 

Caldwell  v.  Caldwell,  408. 

Caldwell  v.  Laminer,  456. 

Calhoun  v.  Cook,  601. 

Callins  v.  Lavelle,  188,  218,  230,  231, 

249. 
Callanan  v.  Votruba,  471,  472. 
Callaway  v.  Fash,  205,  226. 
Calumet  Co.  v.  Russell,  204,  222. 
Cambridge  Bank  v.  Delano,  64,  66. 
Cameron  v.  Supervisors,  54. 
Cameron  v.  Logan,  494. 
Camp  V.  Smith,  118. 
Camp  V.  Bates,  532. 
Campbell  v.  Gas  Co.,  46. 
Campbell  v.  Johnson,  219,  220. 
Campbell  v.  Campbell,  257,  405. 
Campbell  v.  Elliott,  385. 
Campbell  v.  McCahn,  521. 
Campbell  v.  Hall,  534. 
Campbell  v.  Ware,  580. 
Campbell  v.  Wiggins,  412. 
Campbell  v.  Wilson,  590. 
Canal  Commissioners  v.  Poople,  49. 
Canfield  v.  Bostwick,  406. 
Cannon  v.  Brame,  476. 
Cappock  V.  Smith,  368. 
Capehart  v.  Dowery,  501,  503. 
Carbine  v.  Morris,  301. 
Carbine  v.  Pringle,  66. 
Cardell  v.  Ryder,  265. 
Carhart  v.  Harshaw,  23. 
Carneal  v.  Banks,  482. 
Gary  v.  Whitney,  340. 


TABLE   OF    CASES. 


679 


[the  references 
Carey  v.  Rae,  26. 
Carlisle  v.  Tindall,  536. 
Carlisle  v.  United  States,  17. 
Carman  v.  Johnson,  109,  112. 
Carow,  In  re,  331. 
Carpenter  v.  Snelling,  210. 
Carpenter  v.  Underwood,  327. 
Carpenter  v.  Dexter,  222. 
Carpenter  v.  Sherfy,  301,  472. 
Carpenter  v.  Browning,  409. 
Carpenter  v.  Bowen,  370,  449. 
Carpenter  v.  Mitchell,  377,  452. 
Carpenter  v.  Denoon,  609. 
Carpentier   v.   Williamson,   235. 
Carr  v.  Eising,  22. 
Carr  v.  Moore,  170. 
Carr  v.  Ellison,  352. 
Carr  v.  Carr,  375. 

Carrington  v.   Manning's  Heirs,  438, 
CarroU  v.  Safford,  113. 
CarroU  v.  E.  St.  Louis,  275. 
Carroll  v.  Carroll,  441,  444. 
Carroll  v.  GiUion,  601. 
Carson  v.  Murray,  24. 
Carter  v.  Day,  537. 
Carter  v,  Hawkins,  65. 
Carter  v.  Rodewold,  528. 
Carter  v.  Wise,  235,  236. 
Carver  v.  Louthain,  241. 
Cary  v.  Whitney,  340. 
Case  V.  Codding,  257. 
Casebolt  v.  Donaldson,  22. 
Cassell  V.  Cook,  224. 
Cate  V.  Craynor,  409,  417. 
Catlin  V.  Ware,  188. 
Catlino  v.  Decker,  609. 
Cavanaugh  v.  Peterson,  389. 
Cemetery  v.  R.  R.  Co.,  55. 
Chadbourne  v.  Mason,  496. 
Challis  V.  R.  R.  Co.,  55,  547. 
Challefoux  v.  Ducharme,  39,  51,  112, 

135,  145. 
Chambers  Ee,   64. 
Chambers  v.  Jones,  318. 
Chambers  v.  St.  Louis,  278. 
Chambers  v.  Cox,  386. 
Chamberlain  v.  Bell,  66. 
Cliampaign  v.  Harmon,  278. 
Champlin  v.  Haight,  309. 
Chandler  v.  Chandler,  246. 
Chandler  v.  Spear,  554,  566. 


ARE  TO  PAGES.] 

Chandler  v.  Cheney,  263. 

Chapin  v.  Gilbert,  429. 

Chapin  v.  Curtenius,  321. 

Chapman  v.  Lee,  12. 

Chapman  v.  Templeton,  571, 

Charles     River     Bridge     v.     Warren 

Bridge,  157,  547. 
Charles  v.  Waugh,  554,  558. 
Chartiers  Etc.  Co.  v.  McNamara,  211. 
Chase  v.  Ross,  320. 
Chase  v.  Heaney,  6,  7,  656. 
Chase  v.  Whiting,  300. 
Chase  v.  Peck,  344. 
Chase  v.  Chase,  545. 
Chatard  v.  Pope,  111. 
Chatham  v.  Bradford,  72. 
Cheever  v.  Perley,  397. 
Cheney  v.  Cook,  540. 
Chicago  V.  Vulcan  Iron  Works,  254. 
Chicago  V.  Earned,  54,  552. 
Chicago,  etc.,  R.  R.  Co,  v.  Joliet,  50. 
Chicago,  etc.,  R.  R.  v.  Kennedy,  64. 
Childs  V.  Lanterman,  477. 
Chiles  V.  Conley's  Heirs,  188. 
Chiniquy  v.  Catholic  Bishop,  216,  225, 

534. 
Chope  V.  Lorman,  40. 
Chote  V,  Spencer,  524, 
Chouteau  v.  Eckhart,  145, 
Christian  v.  Newberry,  374. 
Christie  v.  Gage,  609. 
Christy  v.  Dana,  118. 
Christy  v.  Fisher,  560. 
Chubb  V.  Johnson,  30. 
Church  V.  Gilman,  152. 
Church  V.  Furniss,  527. 
Church  V.  Smith,  340. 
Church  V.  Hoboken,  50. 
Church  V.  Grossman,  472. 
Churchill  v.  Reamer,  230,  415, 
Cincinnati  v.  White,  50. 
Clader  v.  Thomas,  69. 
Claflin  V.  Dunne,  476. 
Clagett  V.  Conlce,  604. 
Claiborne  v.  Holmes,  70. 
Clapp  V.  Stoughton,  426. 
Clapp  V.  Bromagham,  610. 
Clark  V.  Boorman  's  Ex  'rs,  470. 
Clark  V.  Gaffney,  67. 
Clark  V.  Conner,  565. 
Clark  V.  BosAvorth,  638. 


680 


TABLE  OP   CASES. 


[the  kepehkncks 
Clark  V.  Teiiuisou,  418,  424. 
Clark  V.  Marshall,  7,  656. 
Clark  V.  Graham,  29,  188,  290. 
Clark  V.  Baker,  41,  42,  118,  387. 
Clark  V.  Collidge,  43. 
Clark  V.  Wethy,  192. 
Clark  V.  Hillis,  480. 
Clark  V.  Thompson,  513. 
Clark  V.  Hall,  113. 
Clark  V.  Clark,  264. 
Clark  V.  Manfg.  Co.,  282. 
Clark  V.  Sawyer,  302. 
Clark  V.  Heury,  369,  375. 
Clark  V.  Martin,  197,  252. 
Clarke  v.  Clarke,  308,  608. 
Clarke  v.  Kowau,  5r)8. 
Clark  V.  Boonnan's  Ex'rs,  414. 
Clark  V.  Huges,  610. 
Clarkson  v.  Stinchlield,  534. 
Claunch  v.  Allen,  240. 
Clayton  v.  Wardell,  590. 
Clements  v.  Lamkin,  602. 
Clery  v.  Hinman,  559. 
Close  V.  Samm,  605. 
Coal  Co.  V.  Barber,  470. 
Coats  V.  Taft,  191,  219. 
Cobble  V.   Tomlinson,  273. 
Coburn  v.  Ames,  160. 
Coburn  v.  Ellenwood,  147. 
Cockerel  v.  Coleman,  575. 
Coffee  V.  Silvan,  510. 
Coffin  V.  Taylor,  395. 
Cofran  v.  Cofran,  360. 
Cohea  v.  Hemingway,  317. 
Cohen  v.  Shard,  637. 
Choen  v.  State,  485. 
Cohn  V.  Baer,  477. 
Colby  V.  McOmber,  225. 
Cole  V.  Mette,  182. 
Cole  V.  Kimball,  199. 
Coles  V.  Withers,  377. 
Colesburg  v.  Dart,  290. 
Coleman  v.  Allen,  115. 
Coleman  v.  R.  R.  Co.,  275. 
Coleman  v.  Billings,  604. 
Coleman  v.  Improvement  Co.,  191,  193. 
Coleman  v.  McAnulty,  476. 
Collame  v.  Langdon,  372. 
Collins  V.  Bartlett,  151. 
Collins  V.  Marcy,  252. 
Collins  V.  Warren,  273. 


.\KE  TO   P.VOES.] 

Collins  V.  Megraw,  455. 

I'olliiis  V.  Collins,  535. 

Collins  V.  Lynch,  611. 

Collaniore  v.  Wilder,  583. 

Collier  v.  Blake,  308. 

Collier   v.   Vason,  497. 

Collier  v.  (Jrimsey,  419. 

Collier's  Case,  423. 

Colson  V.  Thompson,  540. 

Comer  v.  Baldwin,  207. 

Commonwealth  v.  Alger,  17,  18. 

Commonwealth  v,  Tewkesbury,  18. 

Commonwealth  v.  Clark,  608,  610. 

Commonwealth  v.  Jackson,  207. 

Commonwealth  v.  Andre,  44. 

Conmionwealth  v.  Stump,  590. 

Commissioners  v.  Babcock,  72. 

(Jommissioners  v.  Rush,  177. 

Commissioners  v.  Brackeuridge,  552. 

Comstoek  v.  Crawford,  36. 

Comstock  V.  Smith,  236,  239. 

Conboy  v.  Iowa  City,  357. 

Congregational  Society  v.  Stark,  279. 

Conklin  v.  Foster,  499, 

Conn.  Ins.  Co.  v.  Smith,  277. 

Connard   v.   Colgan,   208. 

Connor  v.  Banks,  394. 

Connor  v.  Whitmore,  396. 

Conover  v.  Musgrave,  504. 

Conover  v.  Warren,  447. 

Conrad  v.  Ins.  Co.,  466. 

Conrad  v.  Everich,  481. 

Conroy  v.  Perry,  455. 

Cook  V.  Sinnamon,  216. 

Cook  V.  So.  Pk.  Com'rs,  54. 

Cook  V.  Barr,  296. 

Cook  V.  Clark,  383. 

Cook  v.  Berlin  Mill  Co.,  322. 

Cook  v.  Holmes,  411,  423. 

Cooley  V.  Scarlett,  482. 

Coolidge  v.  Learned,  45. 

Coona  V.  Throckmorton,  525. 

Cooper  V.  Ord,  28,  604. 

Cooper  V.  Newton,  182. 

Cooper  V.  Whitney,  369. 

Cooper  V.  Reynolds,  521. 

Cooper  V.  Wilder,  123. 

Cooper  V.  Roberts,  128,  136. 

Cooper  V.  McBride,  606. 

Cooper  V.  Cooper,  264,  586. 

Corbin  v.  Healy,  194. 


TABLE  OF   CASES. 


681 


[the  references 
Corbin  v.  Sullivan,  68. 
Corbitt  V.  Timmernian,  529. 
Corfielcl  V.  Corgell,  579. 
Comiack  v.  Wolcott,  62. 
Cornell  Univ.  v.  Mead,  571. 
Corning  v.  Troy  Factory,  606. 
Corning  v.  Gould,  53. 
Corwin  v.  Merritt,  318. 
Corwith  V.  Bank,  495. 
Cos  V.  Estes,  211. 
Cost  V.  Rose,  525. 
Costello  V.  Edson,  603. 
Costigan  v.  Gould,  184. 
Costly  V.  Driver,  524. 
Coursey  v.  Davis,  251. 
Cover  V.  Manaway,  224. 
Covenhoven  v.  Shuler,  410. 
Covington  v.  Stewart,  613. 
Cowman  v.  Eogers,  588. 
Cowan  v.  Foster,  512. 
Co  well  v.  Col.  Springs  Co.,  197,  252. 
Cowell  V.  Lammers,  156. 
Cowles  V.  Rickett,  324. 
Cowles  V.  Marble,  369,  393. 
Cowley  V.  Pulsifer,  64. 
Cowl  V.  Varnum,  453. 
Cox  V.  Stern,  206. 
Cox  V.  James,  171. 
Cox  V.  Cox,  577. 
Cox  V.  Halsted,  497. 
Coyce  V.  Stovell,  471. 
Coye  V.  Leach,  588. 
Craddock  v.  Stewart's  Adm 'r,  301. 
Craig  V.  Radford,  578. 
Craig  V.  Leslie,  430. 
Craig  V.  Dimock,  210. 
Craig  V.  Swinerton,  454. 
Craig  V.  R.  R.  Co.,  54. 
Craig  V.  Wells,  253. 
Cram  v.  Cotting,  554,  555. 
Cramer's  Appeal,  32,  580. 
Crane  v.  Reeder,  254. 
Crane  v.  Turner,  395. 
Cranston  v.  Crane,  393. 
Crary  v.  Goodman,  603,  605. 
Crawford  v.  Richeson,  451. 
Crawford  v.  Spencer,  182. 
Crodle  v.  Hays,  191,  192. 
Crippen  v.  Dexter,  441. 
Crispon  v.  Hannavan.  28,  603,  606. 
Crittenden  v.  Fairehild,  311. 


ARE  TO   PAGES.] 

Crittenden  v.  Leitensdorf  er,  495. 

Critz '  Heirs  v.  Pierce,  440. 

Croade  v.  Ingraham,  24. 

Crockett  v.  McGuire,  65. 

Crocker  v.  Pierce,  461. 

Crocker  v.  Ballangee,  231. 

Croft  V.  Bunster,  187,  370,  394. 

Crokcr  v.  Gilbert,  187. 

Cromwell  v.  Ins.  Co.,  344. 

Cronise  v.  Hardt,  317. 

Crooker  v.  Crocker,  73. 

Crooke  v.  Andrews,  636. 

Crook  V.  Chilvers,  8. 

Crook  V.  Lunsford,  22. 

Crosby  v.  Dowd,  489. 

Crosby  v.  Parker,  218. 

Cross  v.  Cross,  591. 

Crouse  v.  Murphy,  471,  485,  486,  487. 

Crowell  v.  Johnson,  505. 

Crowles  v.  Marble,  369. 

Cruger  v.  Halliday,  298. 

Crump  v.  Faucett,  577. 

Cryder's  Appeal,  309. 

Culver  V.  Phelps,  524. 

Cummings  v.  Powell,  151. 

Cummings  v.  Rogers,  347. 

Cummings  v.  Cummings,  511. 

Cummings  v.  Plummer,  416. 

Cunningham  v.  Pattee,  65.  { 

Cunningham  v.  MeCollum,  304. 

Cunningham  v.  Curtis,  192. 

Cunningham  v.  Ashley,  113. 

Curd  V.  Lackland,  492. 

Curren  v.  Taylor,  32,  580. 

Curry  v.  Hinman,  524. 

Curry  v.  Spencer,  551. 

Curtis  v.  Hunting,  154. 

Curtis  v.  Flynn,  381. 

Curtis  v.  Root,  470,  503. 

Curtis  v.  Smith,  297,  307,  561 

Curtis  V.  Lyman,  72. 

Cushaman  v.  Glover,  292. 

Cutler  V.  Davenport,  329,  396. 

Cutler  V.  Tufts,  228. 

aitright  V.  Stanford,  582. 

D'Armond  v.  Dubosc,  210. 
Dailey  v.  Litchfield,  12. 
Dale  V.  Lincoln,  182.  208. 
Dale  V.  Shively,  199. 
Dalton  V,  Lamburth,  533. 


682 


TABLE  OP   CASES. 


[the  kkfekences 
Dalton  V.  Lucas,  569,  570. 
Damon  v.  Bibben,  417. 
Danforth  v.  Lowry,  295. 
Daniel  v.  Purvis,  146. 
Daniel  v.  Leitch,  256. 
Daniel  v.  Hodges,  461. 
Daniel  v.  Wharteuby,  413. 
Darling  v.  Rogers,  427. 
Darst  V.  Bates,  184. 
Dart  V.  Woodhouse,  13. 
Dartmouth  College  v.  Woodward,  146. 
Dartmouth  Sav.  Bank  v.  Bates,  468. 
Davenport  v.  Wliistler,  207,  339. 
Davenport  v.  Young,  317. 
Davidson  v.  Secrist,  13. 
Davidson  v.  Ala.  I.  &  S.  Co.,  214. 
Davidson  v.  Seegar,  636. 
Davidson  v.  Van  Pelt,  345,  633. 
Davie  v.  Briggs,  586. 
Davis  V.  HoUingsworth,  181. 
Davis  V.  Burton,  202. 
Davis  V.  R.  R.  Co.,  284. 
Davis  V.  Steeps,  471,  486. 
Davis  V.  McDonald,  269. 
Davis  V.  Savings  Bank,  292. 
Davis  V.  Bohle,  325. 
Davis  V.  Easly,  605. 
Davis  V.  Alvord,  454,  455. 
Davis  V.  Life  Ins.  Co.,  459. 
Davis  V.  Hamilton,  376,  469. 
Davis  V.  Ransom,  495. 
Davis  V.  Henderson,  345,  633. 
Davis  V.  Kline,  467. 
Davis'  Heirs  v.  Taul,  430. 
Day  V.  Button,  63. 
Day  V.  Brenton,  400. 
Day  V.  Wilder,  608. 
Day  V.  Micon,  57. 
Dayton  v.  Corser,  500. 
Dayton  v.  Mintzer,  511. 
De  Camp  v.  Robbins,  277. 
De  Graw  v.  King,  205. 
De  Wolf  V.  Hayden,  42,  238. 
Dean  v.  Bittner,  145,  146. 
Decker  v.  Decker,  410. 
Deerfield  v.  Arms,  47. 
Deford  v.  Deford,  407. 
Deininger  v.  McConnell,  202. 
De  Kay  v.  Irving,  408. 
Delancy  v.  Ganong,  352. 
Delaney  v.  Brunette,  397. 


ARE  TO  PAGES.] 

Delano  v.  Bennett,  395,  396. 

Delaunay  v.  Burnett,  116. 

De  Laureal  v.  Kemper,  401. 

Delevan  v.  Duncan,  345,  346,  633. 

Dement  v.  Thompson,  496. 

Dcming  v.  Miles,  71. 

Deninger   v.    McConnell,   208. 

Dennett  v.  Dennett,  415. 

Den  V.  Taylor,  301. 

Den  V.  Messenger,  423. 

Den  v.  Troutman,  399. 

Den  V.  Dcspreaux,  301. 

Dennis  v.  Maynard,  450. 

Denning  v.  Smith,  564. 

Denton  v.  Title  Co.,  8. 

Denton  v.  Jackson,  278. 

De  Pauw  v.  New  Albany,  551. 

Dequindre  v.  Williams,  44. 

Dew  V.  Dellinger,  340. 

Dewey  v.  McLain,  57. 

Dewey  v.  Sugg,  471. 

Devries  v.  Haywood,  43. 

Dexter  v.  Manley,  353. 

Deyer  v.  Homer,  255. 

Dibrell  v.  Carlisle,  476. 

Dickie  v.  Abstract  Co.,  8. 

Dickenson  v.  Breedan,  570. 

Dickson  v.  Randal,  265. 

Dickson  v.  Rawson,  324. 

Dickson  v.  Todd,  458. 

Dickins  v.  Barnes,  219. 

Dietrich  v.  Hutchinson,  214. 

Dikes  V.  Miller,  53. 

Dill  V.  Wisner,  431. 

Dills  V.  Jasper,  503. 

Dills  V,  Hubbard,  604,  606. 

Dillman  v.  Brown,  274. 

Dillon  V.  Brown,  274. 

Dillingham  v.  Fisher,  115. 

Dillingham  v.  Brown,  571. 

Dingley  v.  Bank,  376. 

Dingley  v.  Boston,  55. 

Dingman  v.  People,  147. 

Dinkins  v.  Bowers,  453,  455. 

Disque  v.  Wright,  380,  388. 

Diversy  v.  Johnson,  515. 

Dix  V.  Palmer,  526. 

Dixon  V.  Dixon,  466. 

Dixon  V.  Merritt,  41. 

Dixon  V.  Cook,  601,  602. 

Dobbins  v.  Wilson,  466. 


TABLE   OP    CASES. 


683 


[the  rkperences 
Dobbins  v.  Dobbins,  607,  610. 
Dodd   V.    Wmiams,    42,    89,    90,    646, 

647,  654,  656. 
Dodge  V.  Hopkins,  291. 
Dodge  V.  Stevens,  323. 
Dodge  V.  Beeler,  577,  580. 
Dodge's  Appeal,  580. 
Doe  V.  Hardy,  316. 
Doe  V.  Governeur,  578. 
Doe  V.  Thompson,  603. 
Doe  V.  Jackson,  321. 
Doe  V.  Eslava,  606. 
Dogan  V.  Griffin,  555. 
Dolde  V.  Vodicka,  171. 
Dole  V.  Thurlow,  203,  205. 
Donald  v.  Gregory,  40. 
Donaldson  v.  Holmes,  454. 
Donaldson  v.  Hibner,  43. 
Donahue  v.  Chase,  315. 
Donohoe,  etc.,  Co.  v.  South  Pac.  Co., 

487. 
Donnelly  v.  Turner,  412. 
Donlin  v.  Hettinger,  515. 
Dood  V.   Williams,   487. 
Doolan  v.  Carr,  151. 
Dooly  V.  Walcott,  67. 
Doolittle  V.  Jenkins,  453. 
Doran  v,  Mullen,  201. 
Dorr  V.  Harrahan,  197. 
Dorland  v.  Magilton,  609. 
Dorsey  v.  Kendall,  501. 
Dorsey  v.  E.  E.  Co.,  364. 
Douglass  V.  Blackford,  409. 
Douglas  V.  Houston,  468. 
Douglass  V.  Dangerfield,  560. 
Durette  v.  Briggs,  300. 
Douseman  v.  Hooe,  146,  482. 
Douthitt  V.  Stinson,  180,  181. 
Dow  V.  Lewis,  188. 
Dow  V.  Dow,  406. 
Dow  V.  McKennedy,  607. 
Dowling  V.  Salliotte,  271. 
Downer  v.  E.  E.  Co.,  50. 
Downey  v.  Borden,  420. 
Downing  v.  Marshall,  310. 
Drake  v.  Kinsell,  22. 
Drayton  v.  Marshall,  370. 
Draper  v.  Bryson,  303. 
Dressel  v.  Jordan,  224. 
Drew  V.  Smith,  192. 
Drusadow  v.  Wilde,  419. 


ARE  TO  PAGES.] 

Dryden  v.  Hanway,  257. 

Dublin  V.   Cliadbourn,  441. 

Ducat  V.  Chicago,  275. 

Ducker  v.  Burnham,  432,  466. 

Dudley  v.  Sumner,  349. 

Duffy  V.  Hobson,  211. 

Dugan  V.  FoUett,  522,  609,  610. 

Duncan  v.  Duncan,  550,  591. 

Dundee  Mtg.  Co.  v.  Huges,  7,  8,  654, 

655. 
Dunham  v.  Shindler,  467. 
Dunklin  v.  Wilson,  476. 
Dunklee  v.  Crane,  453,  640. 
Dugan  V.  Follett,  522. 
Dunlap  V.  Gallatin  Co.,  450,  554,  555, 

557,  558. 
Dunlap  V.  BuUard,  355. 
Dunlap  V.  Dunlap,  254,  406. 
Dunleith  v.  Eeynolds,  551. 
Dunn  V.  Ketchum,  367. 
Dunn  V.  Snell,  560. 
Dunn  V.  Gaines,  213. 
Dunning  v.  Ocean  Nat.  Bank,  320. 
Dunning  v.  Van  Dusen,  421,  422,  618. 
Duplessis  V.  Kennedy,  587. 
Dupont  V.  Davis,  192. 
Dupont  V.  Leavenworth,  273. 
Durant  v.  Comegys,  471,  472. 
Durett  V.  Briggs,  300. 
Durfree  v.  Pa\att,  258. 
Durham  v.  Heaton,  467,  499. 
Durst  V.  Daugherty,  222. 
Duryea  v.  New  York,  195. 
Dutton  V.  Simmons,  486. 
Dwight  V.  Overton,  329. 
D wight  V.  Packard,  191. 
Dyer  v.  Clark,  273. 
Dyer  v.  Homer,  254. 
Dyer  v.  Brennock,  591. 

Eames  v.  Turnvercin,  481. 
Earl  V.  Eowe,  419. 
Easterly  v.  Goodwin,  524. 
Eastman  v.  Porter,  465,  479. 
Eaton  V.  Trowbridge,  208. 
Eaton  V.  Simmonds,  255. 
Eaton  V.  Bryan,  584. 
Eaton  V.  Eyan,  493. 
Eaton  V.  White,  505. 
Edgerton  v.  Bird,  28,  603. 
Edwards  v.  Bibb,  408,  415. 


684 


TABLE  OP   CASES. 


|TUE   KKKERENCES 

EdwarcLj  v.  Rays,  2'A. 

Edwards  v.  llalley,  151. 

Edwards  v.  Thompson,  639. 

Edwards  v.  Trumbull,  376. 

Edwards  v.   Barnard,  413. 

Eidemniller  v.  Wyandotte  City,  54. 

Eideu  V.  Eiden,  536. 

Eiseley  v.  Spooucr,  189. 

Eisenlord  v.  Clum,  625. 

Eisenmengcr  v.   Murphy,  477. 

Egan  V.  Connelly,  555. 

Egery  v.  Woodard,  207. 

Eldridge  v.  Pierce,  22. 

Eldred  v.  Sexton,  114. 

Elder  v.  Derby,  373. 

Elmdorf  v.  Lockwood,  23,  24,  25,  269. 

Ellis  V.  R.  R.  Co.,  390. 

Elliott  V.  Sleeper,  214. 

Elliott  V.  Armstrong,  296. 

Elliott  V.  Sackett,  340. 

Elliott  V.  Wood,  393. 

Elliott  V.  Pearle,  605. 

Ellison  V.  Wilson,  65. 

Ellison  V.  Daniels,  396. 

Ellsworth  V.  R.  R.,  208. 

Ellwell  V.  Shaw,  289. 

Ely  V.  Wilcox,  89,  90. 

Emmerson  v.  WTiite,  584. 

Emmison  v.  Wliitlesey,  425. 

Emory  v.  Keighan,  397. 

Enfield  v.  Permit,  44. 

Ennis  v.  Tucker,  237. 

Equitable  B.  &  L.  Assn.  v.  Bank,  7. 

Equitable    Trust    Co.    v.    Fisher,    312, 

390. 
Erissmann    v.    Erissmann,    544. 
Erskine  v.  Davis,  213. 
Eahelman's  Estate,  577. 
Espy  V.  Anderson,  12. 
Ethell  V.  Nichols,  513. 
Evans   v.   Foss,   71. 
Evans  v.  Davis,  496. 
Evans  v.  Ashley,  304,  483,  505. 
Evans  v.  Edwards,  187. 
Evans  v.  Hudson,  410. 
Evertson  v.  Sawyer,  495,  506. 
Ewins  V.  Gordon,  342,  348. 

Fairmau  v.  Beal,  421. 
Falkner  v.  Guild,  511. 
Fallon  V.  Clindester,  441. 


AKE  TO   PAGES.] 

Faloou  V.   SimsJiausor,  250. 

Fannin  Co.  v.  Riddle,  44. 

Farrington  v.  Wilson,  511. 

Faris   v.   Dunn,  296. 

Farish  v.  Coon,  44,  160,  605,  607. 

Parish  v.  Cook,  417,  418. 

Farmers'  Bank  v.  Haight,  201. 

Farmers'  Bank  v.  Merchant,  449. 

Farmers'  Bank  v.  Peters,  503. 

Farnham   v.   Hildreth,  484,  485. 

Farnsworth  v.  Cole,  542. 

Farnum  v.  Peterson,  254. 

Farrington  v.  Wilson,  112,  511. 

Farwell  v.  Rogers,  254. 

Fast  V.  McPherson,  296. 

Faucett  v.  Faucett,  308. 

Faulke   v.   Bond,  610. 

Fearing  v.  Swift,  413. 

Feaster  v.  Fleming,  494. 

Fehrle   v.   Turner,  532. 

Feit  V.  Vannata,  416. 

Felino  v.  Lumber  Co.,  383. 

Fell  V.  Young,  209,  318. 

Fellows  V.  Heermans,  295. 

Feltman  v.  Butts,  408. 

Fenn  v.  Holmes,  28,  157. 

Fenner  v.  Tucker,  497. 

Fenton  v.  Reed,  590. 

Fergus  v.  Woodward,  495,  501. 

Fergusen  v.  Miles,  303. 

Ferguson  v.  Worrall,  364. 

Fergusen  v.  Jones,  585. 

Fergusen   v.   Crawford,   476. 

Fergusen  v.  Scott,  583. 

Ferris  v.   Crow,  524. 

Ferry  's  Appeal,  408. 

Fetrow  v.  Merriweather,  187. 

Ficklin  v.  Rixey,  500. 

Fiege  v.  Garvey,  23. 

Field  V.  Seabury,  145. 

Field  V.  Barling,  177. 

Final  v.  Backus,  225. 

Finley  v.  Brown,  566. 

Finley  v.  Steele,  232,  233. 

Finney  v.  Boyd,  465. 

Fire  Ins.  Co.  v.  Doll,  290. 

Fire  Ins.  Co.  v.  Loomis,  505. 

Fischer  v.  Eslaman,  271,  301. 

Fisher  v.  Fields,  20,  295. 

Fisher  v.  Hall,  207. 

Fisher  v.  Forbes,  258. 


TABLE    OP    CASES. 


685 


I  THE  REFERENCES 

Fisher  v.  Proviu,  263. 

Fisher  v.  Beckwith,  207. 

Fisher  v.  Butcher,  208,  222. 

Fish  V.  Lightner,  465,  479. 

Fishback  v.  Weaver,  479,  502. 

Fiske  V.  Flores,  193,  300. 

Fiske  V.  Kellogg,  513,  514. 

Fiske  V.  Tolman,  255. 

Fissler's  Appeal,  522. 

Fitch  V.  Willard,  345,  346. 

Fitch  V.  Boyer,  509,  510. 

Firth  V.  Lawrence,  366. 

Fitzgerald  v.  Fitzgerald,  206. 

Fitzgerald  v.  Spain,  560. 

Fitzgerald  v.  Glancy,  582. 

Fitzgibbon  v.  Lake,  321. 

Fitzhugh  V.  Maxwell,  340. 

Flannery  v.  Rohrmayer,  455. 

Fleming  v.  McHale,  257. 

Fleming  v.  Johnson,  502. 

Flemming  v.  Griswold,  611. 

Fletcher  v.  Tyler,  251. 

Fletcher    v.    Holmes,    370,    385,    386, 

449. 
Fletcher  v.  Peck,  52. 
Flinn  v.  Owen,  550, 
Flint  V.  Clinton  Ck).,  281,  361. 
Florence  v.   Hopkins,  610. 
Florence  v.  Paschal,  636. 
Flowery  Mining  Co.   v.   Bonanza  Co., 

202. 
Floyd  V.  Herring,  318. 
Fogal  V.  Perro,  609. 
Fogg  V.  Clark,  417. 
Foley  V.  Harrison,  135. 
Foley  V.  McDonald,  318,  515. 
Foltz  V.  Prouse,  575. 
Fonda  v.  Sage,  536,  636,  637. 
Fontaine  v.  Savings  Bank,  208. 
Fotte  V.  Bryant,  258. 
Forbes  v.  Scannell,  328. 
Ford  V.  Unity  Clmrch,  89,  90. 
Ford  V.  Wilson,  603,  605. 
Ford  V.  Doyle,  484. 
Ford  V.  Holmes,  606. 
Ford  V.  Marshal,  609. 
Forsyth  v.  Freer,  386. 
Forsyth  v.  Small,  49. 
Forrest  v.  .Jackson,  189. 
Forrest  v.  Fay,  490. 
Foshier  v.  Narver,  485. 


ARE  TO  PAGES.  | 

Foster  v.  Shreve,  189. 

Foster  v.  Richard  Busteed,  465,  479. 

Foster  v.  Waterman,  585. 

Foster  v.  Evans,  534. 

Foster  v.  Young,  41. 

Fouby  V.  Fouby,  187. 

Foulk  V.  Coburn,  300. 

Foulks  V.  Pegg,  461. 

Fourth  Ave.  Church  v.  Schreiner,  639. 

Fowle  v.  Merrill,  315. 

Fowler  v.  Shearer,   180,  289. 

Fowler  v.  Doyle,  472. 

Fox  V.  Phelps,  423. 

Fox  V.  Turtle,  499. 

Fox  V.  Burke,  31. 

Fox's  Will,  438. 

Frakes  v.  Brown,  545. 

Franzini  v.  Layland,  49. 

Frazer  v.  Peoria  Co.,  250,  426. 

Frazer  v.  Lee,  323. 

Frazer  v.  Thatcher,  466. 

Frances '  Estate,  408,  415. 

France-Texan    Land    Co.    v.    McCor- 
mick,  275,  284,  285. 

Francis  v.  Sayles,  454. 

Franklin  Co.  v.  Savings  Inst.,  277. 

Franklin  v.  Talniadge,  213. 

Franklyn  v.  Hayward,  374. 

Fratt  V.  Woodward,  192. 

Frederick  v.  Haas,  257. 

Frederick  v.  Pacquette,  511. 

Freedman  v.  Goodwin,  160. 

Freeland  v.  Dazey,  519. 

Freeland  v.  Penn.  Ry.  Co.,  50. 

Fremont  v.  Flower,  155. 

Freeniont  v.  Seals,  155. 

French  v.  Crosby,  24. 

French  v.  Wade,  57. 

Frencli  v.  Edwards,  300. 

French  v.  Burns,  371. 

Friend  v.  Ward,  69,  342,  388,  395. 

Frink  v.  Darst,  238. 

Frink  v.  Le  Roy,  383. 

Frisbie  v.  Whitney,  116. 

Froneberger  v.  Lewis,  323. 

Frost  V.  Beekman,  69. 

Frost  V.  Deering,  269. 

Frost  V.  Bank,  493. 

Fugate  V.  Pierce,  602,  603,  605,  606. 

Fuller  V.   Eddy,  370. 

Fuller  V.  Shedd.  570. 


686 


TABT-E   OF    OASES. 


[THE   REFERENCES 

PuUer  V.  Carr,  2l20. 

Fuller  V.  Jillett,  199. 

Fuller  V.  Fellows,  220. 

Fulton  V.  Hill,  410. 

Fulton  V.  Moore,  506. 

Funk    V.    Eggleston,    421,    423,    432, 

618. 
Furgeson  v.  Joues,  585. 
Furguseu  v.  Mason,  246. 
Furlong  v.  Eiley,  582. 
Furnas  v.  Durgin,  255. 

G.  B.  &  M.  C.  Co.  V.  Groat,  300. 

Gabe  v.  Root,  567. 

Gadberry  v.  Sheppard,  253. 

Gage  V.  Rcid,  570. 

Gage  V.  Schroder,  515. 

Gaines  v.  Hale,  113. 

Gairity  v.  Russell,  533. 

Galaway  v.  Maleliou,  440. 

Gale  V.  Kinzie,  46,  48. 

Gale  V.  Wilson,  256. 

Gallagher's  Appeal,  432. 

Galaway  v.  Malchon,  380,  388. 

Galloway  v.  Finley,  157. 

Galpin  v.  Abbott,  69. 

Galpin  v.  Page,  475,  529. 

Gait  V.  Galloway,  157. 

Gammon  v.  Hodges,  71. 

Gambert  v.  Hart,  654. 

Gans  V.  Renshaw,  633. 

Gardener  v.  Moore,  384. 

Gardiner  v.  Miller,  45,  612. 

Gardiner  v.  Com.  Nat.  Bk.,  326,  329. 

Gardner  v.  Jaques,  304. 

Gardner  v.  Eberhart,  301,  506,  508. 

Gardner  v.  Grannis,  209. 

Gardner  v.  Gardner,  309. 

Gardner  v.  Heyer,  428. 

Garland  v.  Britten,  523. 

Garner  v.  Jones,  263. 

Garnett  v.  Garnett,  180. 

Garnsey  v.  Rogers,  256,  383. 

Garret  v.  Moss,  181. 

Garrett  v.  Lynch,  492. 

Garvin  v.  Stewart,  512. 

Garrison  v.  Rudd,  364. 

Gas  Co.  V.  San  Francisco,  360. 

Gashwiler  v.  Willis,  280. 

Gaskill  V.  Badge,  69. 

Gate    City   Abst.    Co.    v.    Post,    8. 


ARE  TO  PAGE.S.1 

Gates  V.  Labeaume,  326. 

Gates  V.  Caldwell,  198. 

Gates  V.  Preston,  465. 

Gates  V.  Tebbetts,  526. 

Gault  V.  Woodbridge,  496. 

Gay  V.  Walker,  194,  195. 

Gayety  v.  Bcthune,  45. 

Gaylord  v.  Dodge,  23. 

Gavin  v.  Shumaii,  569. 

Geary  v.  Simmons,  465,  479. 

Geary  v.  City  of  Kansas,  205. 

Gebhart  v.  Reeves,  360. 

Gebhard  v.  Sattler,  605. 

Gebhart  v.  Reeves,  360. 

Gee  v.  Moore,  239. 

Geekie  v.  Kirby  Co.,  570. 

Geer  v.  Mining  Co.,  70. 

George  v.  Kimball,  255. 

German  Ins.  Bk.  v.  Nuncs,  326. 

Gemet  v.  Lynn,  416,  609,  610. 

Geyer  v.  Wentzel,  413. 

Gibbs  V.   Thayer,  239,  240. 

Gibbons  v.  Hoag,  315,  381,  393. 

Gibson  v.  Chouteau,  45,   156,  612. 

Gibson  v.  Kelly,  50. 

Gibson  v.  Warden,  274. 

Giesy  v.  R.  R.  Co.,  55. 

Gifford  v.  Choate,  420. 

Gigos  v.  Cochran,  342,  540. 

Gilbert  v.  Chapin,  412,  426. 

Gilbert  v.  Holmes,  291. 

Gilbert  v.  How,  291. 

Gilchrist  v.  Rea,  320. 

Giles  V.  Lyon,  518. 

GiU  V.  Wood,  265. 

Gill  V.  Ho])litt,  524. 

Gillett  V.  Gaffney,  08. 

Gillett  V.  Neaganza,  534. 

Gillilan  v.  Swift,  270. 

Gillham  v.  Mustin,  435. 

Gilkey  v.  Hamilton,  316,  317. 

Gilmer,  Matter  of,   500. 

Gilmore  v.  Sapp,  153,  154. 

Gilpin  V.  Hollingsworth,  412. 

Gissey  v.  R.  R.  Co.,  55. 

Given  v.  Marr,  546. 

Gjerstadengen  v.  Van  Duzen,  122. 

Glading  v.  Frick,  72. 

Gladsen  v.  Whaley,  530. 

Gittens  v.  Lowry,  604. 

Clency  v.  Elliott,  560. 


TABLE  OF  CASES. 


687 


[thk  references 
Glass  V.  Hurlbut,  638. 
Glover  v.  Payn,  377. 
Goddard  v.  Perkins,  461. 
Godfrey  v.  Bradley,  129. 
Godfrey  v.  Valentine,  527. 
Godfrey  v.  Alton,  176. 
Goff  V.  Goff,  481. 
Gold  V.  Judson,  406. 
Goldberg  v.  Title  Co.,  8,  73. 
Golder  v.  Brewster,  308. 
Goodel  V.  Hibbard,  19. 
Goodrich  v.  Lambert,  414. 
Goodman  v.  Randall,  200. 
Goodspeed  v.  Fuller,  186. 
Goodwin  v.  Goodwin,  322,  349. 
Goodwin  v.  Baldwin,  397. 
Gordan  v.  Bodwell,  495. 
Gorham  v.  Arnold,  372,  449. 
Gorman  v.  Stanton,  185. 
Goss  V.  Troman,  592. 
Gossard  v.  Fergusen,  505. 
Gossett  V.  Kent,  182,  274. 
Gossom  V.  Donaldson,  495. 
Goudy  V.  Hall,  512. 
Gould  V.  Mather,  308. 
Gould  V.  Sternberg,  535. 
Gould  V.  Day,  208,  560. 
Gould  V.  Hendrickson,  303,  304. 
Gowan  v.  Jones,  504. 
GrafE  v.  Middleton,  235. 
Graham  v.  Bleakie,  503. 
Graham  v.  Graham,  42,  418. 
Grandin  v.  Hernandez,  202. 
Granger  v.  Avery,  47. 
Grant  v.  Davenport,  360. 
Grant  v.  Fowler,  605. 
Grantern  v.  Eosecierrance,  527, 
Gray  v.  Pingree,  40. 
Gray  v.  Ulrich,  203,  205. 
Gray  v.  Hayes,  250. 
Gray  v.  Blanchard,  2.j2. 
Gray  v.  Brignardello,  501, 
Gray  v.  Gray,  544, 
Grayson  v.  Weddle,  513. 
Graves  v.  Buren,  565. 
Graves  v.  Graves,  186. 
Graves  v.  Coutant,  452. 
Grebbin  v.  Davis,  479. 
Green  v.  Liter,  154. 
Green  v.  Blanchard,  14. 


ARE  TO  PAGES.] 

Green  v.  Myers,  489. 

Green  v.  Marks,  477, 

Green  v,  Holway,  210, 

Green  v,  Irving,  612. 

Green  v.  Slayter,  457,  460. 

Green  v.  Pulsford,  624. 

Green  v.  Garrington,  72. 

Green  Bay  Co.  v.  Hewitt,  228. 

Greenby  v.  Kellogg,  199. 

Greene  v.  Dickson,  219. 

Greene  v,  Lunt,  556, 

Greenleaf  v.  Bebee,  455. 

Greenwood   v.   Murray,   441. 

Greer  v.  Higgins,  66. 

Grey  v.  Tubbs,  347. 

Gridley  v.  Hopkins,  177. 

Gridley  v.  "Watson,  318,  468. 

Gridley  v.  Gridley,  431. 

Gridley  v.  Philips,  316,  318. 

Griffin  v.  Eanney,  210. 

Griffin  v.  Rogers,  324, 

Griffin  v.  Proctor,  386, 

Griffin  v.  Sheffield,  205,  225. 

Griffin  v.  Page,  510. 

Griffith  V.  Harvester  Co.,  475. 

Grignon's  Lessee  v.  Astor,  112,  146, 

520. 
Grimes  v.  Orrand,  182. 
Grimstone  v.  Carter,  376. 
Griswold  v.  Smith,  638. 
Griswold  v.  Fuller,  636. 
Groff  V.  Bank,  67. 
Groft  V.  Weekland,  601. 
Grogan  v.  San  Francisco,  147,  361. 
Groner  v.  Smith,  202. 
Grout  V.  Townsend,  187. 
Grove  v,  Cather,  454. 
Grover  v.  Hale,  308,  311,  315. 
Groves  v.  Webber,  462. 
Groves  v.  Cox,  423. 
Grube  v.  Wells,  602,  605. 
Grumley  v.  Webb,  322. 
Grundies  v.  Reid,  484. 
Guild  V.  Richards,  196. 
Guild  V.  HaU,  472. 
Guilford  v.  Love,  510, 
Guion  v,  Pickett,  21,  295,  297. 
Guiteau  v.  Wisely,  470. 
Gulden  v.  O'Bryne,  383. 
Gulf  R.  R.  Co.  V.  Owen,  608. 
Gunby  v.  Brown,  583. 


688 


TABLE   OP    CASES. 


[thk  kkferences 
Gunton  v.  Zantzingcr,  501. 
(Jjiy  V.  Pierson,  513. 
Guycr  v.  Wookcy,  5.'<3,  534. 
Guynn  v.  McO;uiloy,  501. 
Gwynnc  v.  Noiswaiipjcr,  564. 

Hai-kctt  V.  Callander,  (5.S8. 

Haddon  v.  Shoutz,  230. 

Haddock  v.  Haddock,  535. 

Hague  V.  Hague,  251. 

Hague   V.  West   Hobokt-n,  :)72. 

ITahn  v.  Dawson,  50. 

Hahn  v.  Kelly,  475,  510. 

Hairston  v.  Jandon,  341. 

Haldeman  v.   R.  R.  Co.,  55. 

Hale  V.  Woods,  289. 

Hale  V.  Kenosha,  572. 

Haley  v.  Boston,  414. 

Haley  v.  Gratcwood,  406. 

Halifax  v.  Stark,  194. 

HalJ  V.  Ashby.  254. 

HaU  V,  Jarvis,  39,  145. 

Hall  V.  Morton,  67. 

Hall  V.  Leonard,  182,  216. 

Hall  V.  Bumpstead,  222. 

Hall  V.  Chapman,  513. 

Hall  V.  Hall,  406,  441. 

Hall  V.  Dennison,  328. 

Hall  V.  Gould,  450. 

Hall  y.  Mooring,  603. 

Hall  v.  McDuff,  344. 

Hall  V.  Law,  604. 

Hall's  Lessee  v.  Ashby,  242. 

Hallahan  v.  Herbert,  454. 

Halloran  v.  "WTiitcoinb,  43. 

Halleck  v.  Guy,  506. 

Hallett  V.  Wylie,  351,  352. 

Hallyburton  v.  Carson,  434. 

Hallas  V.  Bell.  605. 

Hamelman  v.  Mounto,  188. 

Hamilton  v.  Lubkee,  315. 

Hamilton  v.  Doolittle,  235. 

Hamilton  v.  Valiant,  .^62. 

Hamilton  v.  Wright,  353,  604,  607. 

Hamilton  v.  Boggcss,  604. 

Hamilton  v.  Porter,  406. 

Hamlin  v.  Express  Co.,  410,  411,  420. 

Hammond  v.  Gordon,  225. 

Hammond  v.  Wells,  456. 

Hancock  v.  Wentworth.  26. 

Hand  v.  Winn,  267. 


ARE  TO  P.\QES.] 

Handlcy  v.  Wrightaon,  416. 

Ilandlin   v.   Lumber  Co.,  566. 

Hanford  v.   Blessing,  377. 

Hannahs  v.  Felt,  461. 

Hansen  v.  Eichstacdt,  63. 

H.inson  v.  Annstrong,  534. 

Hanson  v.  Vernon,  551. 

Happin  v.  Doty,  608,  639. 

Haraden   v.  Larrabee,  416,  580. 

Harbeck  v.   Harbeck,  591. 

Hardin  v.  Crate,  184,  208. 

Hardin  v.  Osborne,  208,  225,  337. 

Hardin  v.  .Tones,  535. 

Hardin  v.  Governeuer,  603. 

Harding  v.  Hale,  257. 

Harding  v.  Strong,  535. 

Harland  v.  Eastman,  590,  625. 

TTnrlowo  v.  Hudgins,  24.5. 

Harmon    y.   Oberdorfer,  208. 

Harnnge  v.  Berry,  613. 

Harouska  v.  .Jonke,  214. 

Harper  v.  Rowe,  509. 

Harphani   v.   Little,   494. 

Harrer  v.  Waldner,  264,  546. 

Harris  Case,  257. 

Harris  Estate,  577. 

Harris  v.  Glenn,  22. 

Harris  v.  Lester,  367,  514. 

Harris  v.  Douglas,  438. 

Harris  v.  McGovern,  613. 

Harris  v.  Fly,  431. 

Harrington  v.  Fish,  102,  203,  222. 

Harrington  v.  Fortner,  384. 

Harrington  v.  Wofford,  527. 

Harrison  v.  Boring,  177. 

Harrison  v.  Phillips'  Academy,  184. 

Harrison  v.  Simmons,  214. 

Harriman  v.  Gray,  236. 

Harryman  v.  Star,  501. 

Harsh  aw  v.  McKesson,  541. 

Harshbarger  v.  Foreman,  452. 

Hart  V.  Stone,  361. 

Hart  V.  Clialker,  388. 

Hart  V.  Lindsey.  487. 

Hart  V.  Smith,  565. 

Hart  V.  Lyon,  364. 

Hart  V.  Gregg,  288. 

Hartford   Ore   Co.   v.   Miller,   271. 

Ha r thill,  In  re,  33 L 

Hartshorn  v.  Dawson,  222. 

Harvcv  v.  Lebetter.  257. 


TABLE  OF   CASES. 


689 


[the  RErEKENCES 

Harvey  v.  Varney,  255. 
Harvey  v.  Sullen 's  Heirs,  407, 
Haskill  V.  Sevier,  384. 
Haslam  v.  Campbell,  22. 
Hastings  v.  Johnson,  495. 
Hastings  v.  Cutler,  76. 
Hatch  v.  R.  R.  Co.,  54,  547. 
Hatch  V.  Hatch,  152. 
Hatch  V.  Bates,  187. 
Hatch  V.  Kelly,  583. 
Hatch  V.  Buffalo,  636. 
Hatch  V.  Bullock,  608. 
Haughwont  v.  Murphy,  458. 
Havens  v.  Sherman,  492. 
Haverstick's  Appeal,  416. 
Hawk  V.  McCullough,  188,  232. 
Hawkins  v.  Champion,  189. 
Hawkius  v.  Hawkins,  505. 
Haworth  v.  Huling,  482. 
Haworth  v.  Taylor,  79. 
Hawley  v.  Northampton,  430. 
Hawley  v.  Morse,  66. 
Hawxhurst  v.  Rathgeb,  290. 
Hayden  v.  Bucklin,  457,  459,  522. 
Hayden  v.  Stoughton,  407. 
Haycock  v.  Stow,  341. 
Hayes  v.  Livingston,  43. 
Hayes  v.  Shaw,  476. 
Hayes  v.  Stiger,  503.    ■ 
Hayes  v.  Fessenden,  454. 
Haynes  v.  Bourn,  18,  575. 
Haynes  v.  Boardman,  607. 
Hayes  v.  Russell,  508. 
Hayward  v.  Ormsbee,  110,  112. 
Hay  ward  v.  Davidson,  277. 
Hayward  v.  Cain,  302. 
Haywood  v.  Collins,  461,  525. 
Haxton  v.  Corse,  576. 
Hazel  V.  Hagan,  420,  421. 
Headley  v.  Gaundry,  398. 
Heaton  v.  Fryberger,  181. 
Heath  v.  Heath,  181. 
Heath  v.  Hewitt,  216. 
Hect  V.  Spears,  453. 
Hedges  v.  Paulin,  605. 
Hedrick  v.   Hughes,  136,   612. 
Hell's  Appeal,  488. 
Heinlen  v.  Heilborn,  151. 
Heinsen  v.   Lamb,  7. 
Heller  v.  Cohen,  602. 

Warvelle  Abs. — 44 


ARE  TO  PAGES.] 

Hellreigil  v.  Manning,  216,  634. 

Hemingway  v.  Scales,  263. 

Hemphill  v.  Davies,  116. 

Hemstreet  v.  Burdick,  290,  291. 

Henderson  v.  Ford,  292. 

Henderson  v.  Whitinger,  320. 

Henderson  v.  Downing,  326. 

Hendrick  v.  Cleveland,  519. 

Hendley  v.  Baccus,  525. 

Henly  v.  Hotaling,  377. 

Henning  v.  Paschke,  217. 

Henning  v.  Pinnet,  502. 

Henning  v.  Varner,  411. 

Hensley  v.  Baker,  493. 

Herman  v.  Deming,  380,  388. 

Herndon  v.  Reed,  225. 

Herrick  v.  Morill,  191. 

Herrick  v.  Stover,  409. 

Herrington  v.  Williams,  536. 

Herrington  v.  McCollum,  459. 

Herrington   v.   Herrington,  458. 

Hertig  v.  People,  368. 

Hersey  v.  Turbett,  522. 

Hess  V.  Voss,  520. 

Hctzcl  V.  Barber,  21. 

Heuser  v.  Harris,  415. 

Heustis  V.  Johnson,  519, 

Hewes  v.  Reis,  554,  556. 

Hewitt  V.  Week,  72. 

Hewitt    V.    Morgan,    205. 

Heyward  v.  New  York,  55,  547. 

Hickenbotham  v.  Blackledge,  505. 

Hickox  V.  Greenwood,  454. 

Hicks  V.  Skinner,  494. 

Hickson   Lumber   Co.    v.    Gay   Lumb. 

Co.,  387. 
Hickman  v.  Quinn,  250. 
Hickman  v.  Perrin,  388. 
Higbee  v.  Rice,  68, 
Hightower  v.  Rigsby,  453. 
Hightower    v.    Handlin,    495. 
Hildreth    v.    Thompson,    496. 
Hiles  V.  Atlee,  72. 
Hill  V.  Franklyn,  22. 
Hill  V.  Treat,  36,  405,  450,  583. 
Hill  V.  Epley,  65. 
Hill  V.  Miller,  151. 
Hill  V.  Reynolds,  302. 
Hill  V.  Ressegien,  345. 
Hill  V.  Wall,  489. 
Hillman  v.  De  Nyso,  267. 


690 


TABLE   OF    CASES. 


iTHK   KEKEKENCES 

Hillis  V.  HilUs,  433. 

Hilton  V.  Asher,  201. 

Himes  v.  Koighblinger,  207. 

nines  V.  Perkins,  377. 

Hinkley  v.  Greene,  28,  605. 

Hinman  v.  Warren,   160. 

Hinsdale  v.  Thornton,  :U12. 

Hinson  v.  Adrian,  542. 

Hinton  v.  Milburn,  41 G. 

Hiss  V.  McCabe,  224. 

Hitchcock  V.  Merrick,  395. 

Hoadley  v.  Stephens,  29. 

Hoard  v.  Hoard,  513. 

Hobson  V.  Ewan,  494. 

Hobson  V.  Porter,  274. 

Hockaday   v,    Lynn,    34. 

Hockett  V.  Bailey,  265. 

Hoehlander  v.   Hochlander,  525. 

Hodges  V.  Eddy,  606. 

Hodgen  v.  Guttery,  523. 

Hoffman  v.  Mackall,  329. 

Hoffman  v.  Stigers,  264. 

Hoffman  v.  Felt,  345. 

Hogans  v.  Carruth,  226. 

Hogue  V.  Corbit,  492. 

Holbrook  v.  Dickinson,  337,  552,  555, 

558. 
Holbrook  v.  Debo,  239,  240. 
Holder  v.  Mount,  581, 
Holdane  v.  Cold  Spring,  257. 
Holloway  v.  Gall-way,  436. 
Holland  v.  Kreider,  23. 
Holland  v.  Fuller,  273. 
Holland  y.  Holmes,  345,  346,  633. 
Hollman  v.  DeNyse,  273. 
Hohn  V.  Wust,  12. 
Holman  v.  Gill,  302,  305. 
Holmes  v.  Seely,  26. 
Holmes  v.  E.  R.  Co.,  53. 
Holmes  v.  Jarret  Moon,  250. 
Holmes  v.  Johnson,  444. 
Holmes  v.  Carondolet,  534. 
Holmes  v.  Shaver,  493,  501. 
Holmes  v.  McGinty,  394. 
Holmes  v.  Evans,  341. 
Holmes  v.  Holmes.  489. 
Holmes  v.  Mead,  427,  428. 
Hook  V.  Fenner,  70. 
Hooker  v.  Be  Pales,  540. 
Hooper  v.  Scheimer,  112,  141. 
Hooper  v.  Young,  150. 


ARE  TO  PAGES.] 

Hope  V.  Sawyer,  225. 

Hope  V.  Blair,  236,  521. 

Hopper's  Will,  436. 

Hopping  v.  Burnham,  496. 

Hopkins  v.  McLaren,  457. 

Hopkins  v.  McCann,  573. 

Hopkins  v.  Medley,  537. 

Hoppin  V.  Doty,  608. 

Hopson  v.  Commonwealth,  415. 

Horn  V.  Cole,  43. 

Horn  v.  Metzger,  603. 

Hornbeck  v.  Westbrook,  181,  183, 

Horner  v.   Zimmerman,  255. 

Hosmer  v.  Wallace,  142. 

Hosmer  v.  Campbell,  314,  315. 

Hot  Springs  Cases,  114. 

Hotchkiss  v.  Cutting,  504,  524. 

Houck  V.  Yates,  170. 

Hough  v.  Land  Co.,  277,  279. 

Houghton  V.  Kendall,  416. 

Houghton  V.  Hardenburg,  153. 

Houseman   v.   Girard   Loan   Ass'n,   7, 

8,   654. 
Housley  v.  Lindsay,  501. 
Houston  V,  Blackman,  187. 
Houston  V.  Houston,  469. 
Houx  v.  Batt«en,  201. 
Howard  v.  Kennedy,  522. 
Howard  v.  Howard,  606. 
Howe  V.  Thayer,  72,  488. 
Howe  V.  Williams,  220. 
Howe  V.  Hutchinson,  12. 
Howe  V.  Howe,  207. 
Howland  v.  Blake,  206. 
Howland  v.  Cemetery  Ass'n,  613. 
Howland  v.  Shurtleflf,  397. 
Howerter  v.  Kelly,  524. 
Hoy  v.  Allen,  205. 
Hoyt  V.  Kimball,  196,  253. 
Hoyt,  In  re,  454. 
Hoyt  V.  Jaques,  291. 
Hoyt  V.  Swar,  266, 
Huber  v.  Huber,  265. 
Hubbell's  Trust,  Be,  352. 
Huber  v.  Gazley,  176. 
Hubbard  v.  Bell,  46. 
Hudson  V.  Putney,  606. 
Hudson  V.  Poinderter,  202. 
Huebsch  v.  Schell,  187,  374. 
Huftalin  v.  Misner,  508. 
Hughes  V.  Wright,  223. 


«t 


TABLE   OF   CASES. 


691 


[the  references 
Hughes  V.  Tabb,  309. 
Hughes    V.    Washington,    317. 
Hughes  V.  Watt,  301,  510. 
Hulett  V.  Inlow,  263. 
Huls  V.  Bunten,  605. 
Humbert  v.  Trinity  Ch.,  602,  606. 
Hungerf ord 's  Appeal,  479. 
Hunnicut  v.  Peyton,  604. 
Hunt  V.  Rowley,  78. 
Hunt  V.  Hunt,  45,  248,  417. 
Hunt  V.  Johnson,  187,  265. 
Hunt  V.  Amidon,  198. 
Hunt  V.  Bridge  Co.,  276. 
Hunt  V.  Chosen  Friends,  75,  590. 
Hunt  V.  White,  408. 
Hunt  V.  Haven,  522. 
Huntt  V.  Townsend,  308,  311. 
Hunter  v.  Watson,  181,  216. 
Hunter  v.  Vaughn,  297. 
Hunter  v.  Buckner,  389. 
Hunting  v.  Walter,  306,  503,  504. 
Hunton  v.  Nichols,  613. 
Hurd  V.  Brisner,  565. 
Hurley  v.  Estes,  371. 
Husbands  v.  Jones,  461. 
Huston  V.  Seeley,  267. 
Hutchens  v.  Doe,  495. 
Hutchings  v.  Low,  113. 
Hutchins  v.  Carleton,  233. 
Hutchins   v.    Kimmell,    591. 
Hutchinson  v.    R.    R.    Co.,   232. 
Hutchinson's  Appeal,  485,  486. 
Hutton  V.  Williams,  506. 
Huttenberg  v.  Main,  341. 
Hyam  v.  Edwards,  587. 
Hyde  v.  Olds,  328. 
Hyde  v.  Tanner,  583. 
Hyde  v.  Warren,  394. 
Hyde  Park  v.  Borden,  360. 
Hydraulic  Co.  v.  Loughry,  466,  469. 

111.  Land  &  Loan  Co.  v.  Bonner,  590. 

Illinois,  etc.,  R.  R.  v.  Johnson,  286. 

Imp.  Fire  Ins.  Co.  v.  Gunning,  519. 

Ingals  V.  Plamondon,  641. 

In  re  Gas  Co.,  54. 

In  re  McLean,  62. 

In  re  Fox,  431,  438. 

In  re  Chambers,  64. 

In  re  Caswell's  request,  62,  64. 

In  re  Phillips,  204. 


ABE  TO  PAGES.] 

Ill  re  Harthill,  331. 

In  re  Lewis,  325. 

In  re  Romanow,  325. 

In  re  Williams,  441. 

In  re  MuUer,  331. 

In  re  Carow,  331. 

In  re  Sands  Brewing  Co.,  383. 

In  re  Hoyt,  454. 

Indianapolis  R.  R.  Co.  v.  Ross,  606. 

Ingle  V.  Jones,  320. 

Ingle  V.  Culbertson,  371. 

Ingraham  v.  Grigg,  327. 

Ins.   Co.   V.   Dake,   72. 

Ins.  Co.  V.  Waller,  215. 

Ins.  Co.  V.  Commonwealth,  275. 

Ins.  Co.  V.  Hallock,  495. 

Ins.  Co.  V.  Walsh,  253. 

Ins.  Co.  V.  Scales,  563. 

Ins.  Co.  V.  Eldridge,  399. 

Ins.  Co.  V.  Stewart,  255. 

International  Bank  v.  Sherman,  333. 

Irvine  v.  Marshall,  108. 

Irving  v.  Brownell,  226,  602. 

Irwin  v.  Dixon,  176. 

Isett  v.  Stuart,  523. 

Isham  V.  Bennington  Co.,  282. 

Ishmeal  v.  Parker,  540. 

Isler  V.  Brown,  461. 

Israel  v.  Arthur,  513. 

Ivy  V.  Olawson,  530. 


Jacks  V.  State,  309. 

Jacks  V.  Dyer,  561. 

Jackson  v. 

Ingraham,  16. 

Jackson  v. 

Hart,  16. 

Jackson  v. 

Veeder,  21. 

Jackson  v. 

Vanderheyden, 

,  24. 

Jackson  v. 

Alston,  67. 

Jackson  v. 

Warren,  73,  522. 

Jackson  v. 

Gary,  183. 

Jackson  v. 

Sehoonmakcr, 

184. 

Jackson  v. 

Bard,  184. 

Jackson  v. 

Leek,  186. 

Jackson  v. 

Dillon,  187. 

Jackson  v. 

Meyers,  189,  : 

230. 

Jackson  v. 

Perkins,  207. 

Jackson  v. 

Gary,  218. 

Jackson  v. 

Hudson,  230. 

Jackson  v. 

Rosvelt,  231. 

Jackson  v. 

Sisson,  250. 

Jackson  v. 

Henry,  255. 

(J92 


TABLE   OP    CASES. 


[TUE   UEKKKENCKS 
■lacksou  V.  Cauipbell,  280. 
Jack.suu  V.  Bush,  282,  303. 
Jacksou  V.  Hagaman,  303. 
Jacksou  V.  Delancey,  304. 
Jacksou  V.  Merrill,  423. 
Jacksou  V.  McKenuy,  245. 
Jacksou  V.  Williams,  466. 
Jacksou  V.  Tattle,  522. 
Jacksou  V.  Vermylyea,  606. 
Jacksou  V.  Andrews,  457. 
Jacksou  V.  Kobinsou,  513. 
Jackson  v.  Spink,  496. 
Jacksou  V.  Young,  496. 
Jacksou  V.  Hendricks,  575. 
Jacksou  V.  Browner,  590. 
Jacksou  V.  Berner,  602, 
Jackson  v.  Woodruff,  605. 
Jackson  v.  Wheat,  606. 
Jacksou  V.  Johnson,  606. 
Jackson  v.  Moore,  611. 
Jackson  v.   Boneham,  587. 
Jackson  v.  Harsen,  349. 
Jacksou  V.  DelecroLx,  349. 
Jacksou  V.  Allen,  350. 

Jackson  v.  Bull,  373,  423. 

Jackson  v.  Roberts,  374,  566. 

Jackson  v.  Devitt,  374. 

Jacksou  V.  McChesney,  376. 

Jackson  v.  Bobbins,  420. 

Jackson  v.  Esty,  564. 

Jackson  v.  Morse,  564. 

Jackson  v.  Littel,  382. 

Jackson  v.  Wood,  397. 

Jackson  v.  Housel,  417. 

Jackson  v.  Harris,  423. 

Jackson  v.  Jackson,  435. 

Jackson  v.  Warren,  457. 

Jackson  v.  Anderson,  493. 

Jackson  v.  Green,  578. 

Jackson  v.  Winslow,  236. 

Jacobus  V.  Smith,  505. 

James  v.  Moore,  14. 

James  v.  Stiles,  213. 

James  v.  James,  407. 

James  v,  Morey,  374. 

Jamieson  v.  Hay,  419. 

Jamison  v.  Fopiana,  361. 

Jamison  v.  Perry,  608. 

Janes  v.  Williams,  441. 

Janvrin  v.  Fogg,  210. 

Jarvis  v.  Butcher,  344, 


AKE  TO   PAGES.] 

Jarvis  v.  Peck,  554. 
•lasperson  v.   Scharnikow,   607. 
Jassoy    V.    White,    420,   421,   618. 
Jccks  V.  Tousing,  18. 
Jefferis  v.  Land  Co.,  46. 
Jeffers  v.  liadcUff,  36. 
Jelks  V,   Barrett,   317. 
Jemison  v.  Bank,  285, 
Jenkins  v,  V'oltz,  22, 
Jenkius  v.  llosenburg,  376. 
Jeuuiugs  V.  Simpson,  476. 
Johnson  v.  Mcintosh,  17,  52. 
Johnson  v.  United  States,  44. 
Johnson  v.  Bantock,  187, 
Johnson  v.  Shaw,  209. 
Johnson  v,  McGraw,  324. 
Johnson  v,  Montgomery,  269. 
Johnson  v,  Hess,  486. 
Johnson  v.  Brewer,  327. 
Johnson  v.  Corbett,  396,  584. 
Johnson  v.  Bush,  282. 
Johnson  v.  Hubbell,  348, 

ohuson    V.    Houston,    370. 

Johnson  v.  Stagg,  377,  387. 

Johnson  v.  Carpenter,  395. 

Johnson  v.  Dodge,  540. 

Johnson  v,  E,  R.  Co.,  54. 

Johnson  v.  Quarles,  257. 

Johnson    v.    Johnson,    49,    419. 

Johnson  v,  Schloesser,  471,  472, 

Johnson  v.  Baker,  503,  509. 

Johnston  v.  Haines,  234. 

Johnston  v.  Geisriter,  331. 

Johnston  v.  Mendenhall,  345. 

Johnston  v.  Smith,  560, 

John    Hancock,    etc.,    Co.    v.    Moore, 
587. 

Jolliff  V.  Jolliff,  544. 

Jones  V.  Johnson,  47. 

Jones  V.  Roberts,  69. 

Jones  V.  Meyers,  78,  114,  142. 

Jones  V.  Martin,  225. 

Jones  V.  R.  R.  Co.,  197. 

Jones  V.  Franklin,  199. 

Jones  V.  Monroe,  254. 

Jones  V.  Clifton,  261. 

Jones  V.  Carter,  289. 

Jones   V.    Scott,    300,    302. 

Jones  V.  Wood,  339,  422. 

Jones  V.  Brewer,  384. 

Jones   V.    Bacon,    420. 


TABLE   OF    CASES. 


693 


[the  references 
Jones  V.  Doss,  452. 
Jones  V.  Lapham,  454. 
Jones  V.  Porter,  484. 
Jones  V.  Patterson,  613. 
Jones  V.  Gardner,  633. 
Jones  V.  Jenkins,  640. 
Jones  V.  Devore,  555. 
Jones'  Estate,  487. 
Jonesboro  v.  McKee,  557. 
Jordan  v.  Bradshaw,  302. 
Joseph  V.  Biglow,  185. 
Joy  V.  Berdell,  534. 
Jumel  V.  Jumel,  256. 

Kane  v.  Wliittick,  478. 
Kansas  v.  R.  E.  Co.,  284. 
Karmuller  v.  Krotz,  195. 
Karnes  v.  Harper,  480,  481. 
Kathan  v.  Comstock,  571. 
Kaufman  v.   Whitney,  265. 
Kayser  v.  Heavenrieh,  326. 
Kean  v.  Ash,  533. 
Keane  v.  Cannonoran,  564. 
Kearney  v.  Vaughn,  231,  232. 
Kearney  v.  Post,  354. 
Keating  v.  Keating,  544. 
Keegan  v.  Geraghty,  34,  57&-,  585. 
Keeler  v.  Wood,  195. 
Keeler  v.  Keeler,  519. 
Keemle  v.   Conrad,  483. 
Keen  v.  Preston,  324. 
Keith  V.  Keith,  302. 
Kelley  v.  Bourne,  182. 
Kelly    V.    Hendricks,    43. 
Kelly  V.  McGuire,   590. 
Kelly  V.  Transportation  Co.,  277,  279. 
Keller  v.  Brickey,  146. 
Kellett  V.  Shepard,  411. 
Kellogg  V.  Hale,  265,  294. 
Kleppeuer    v.    Laverty,   416. 
Kemp  V.  Cook,  477. 
Kennedy  v.  Municipality  No.   2,  48. 
Kennedy  v.  Eoundtree,  211. 
Kennedy  v.  Merriam,  485. 
Kennedy  v.  Kennedy,  416. 
Kennedy  v.  People,  524. 
Kennedy  v.  Gaines,  321. 
Kent  V.  Welch,  198. 
Kent  V.  Cantrall,  241. 
Kent     V.  Atlantic   DeLaine   Co.,   246, 
248. 


ARE  TO  PAGES.] 

Kentucky  Coal  Co.  v.  Sewell,  182. 
Kenyon  v.  See,  19,  252. 
Kenyon  v.  Quinn,  303. 
Kenzie  v.  Eoleson,  411. 
Kerfoot  v.  Cronin,  100,  193. 
Kerfoot  v.  Breckenridge,  539. 
Kerr  v.  Dougherty,   406. 
Kerr  v.  Birnie,   208. 
Kerr  v.  Verner,  295. 
Kerr  v.  Hitt,  613. 
Kerr  v.  Agard,  375. 
Ketchum  v.  E.  E.  Co.,  297. 
Keyes  v.  Seanlan,  545. 
Kidder  v.  Aholtz,  454. 
Kille  V.  Eye,  207,  208. 
Kimball  v.  Walker,  232. 
Kimball  v.  Blaisdell,  240. 
Kimm  v.  Weippert,  262. 
Kineaid  v.  Dormey,  78. 
Kincaid  v.  Tutt,  504. 
King  V.  Eea,  189,  267. 
King  V.  Whiton,  300. 
King  V.  Ruckman,  340,  342. 
King  V.  Y.  M.  Ass'n,  452. 
King  V.  Kent's  heirs,   511. 
King  V.  Blood,  524. 
King  V.  Goodwin,  493. 
Kingman  v.  Barton,  328. 
Kinsley   v.   Ames,   393. 
Kinsman  v.  Loomis,  236. 
Kirby  v.  Eunals,  473,  481. 
Kirk  V.  Burkholtz,  189. 
Kirk  V.  Vanberg,  303. 
Kirkaldie  v.  Larrabee,  42. 
Kirkland  v.  Cox,  294,  295. 
Kirkpatrick   v.   Chestnut,   431. 
Kirtz  V.  Behrensmeyer,  488. 
Kister  v.  Eeeser,  194. 
Klein  v.  McNamara,  375. 
Kleppner  v.  Laverty,  472. 
Knap  V.  Bailey,  65. 
Knapp  V.  Brown,  454. 
Kneeland  v.   Van  Valkenburgh,   218. 
Knight  V.  Waterman,  327. 
Knight  V.  Mahoney,  424. 
Knotts  V.  Stearns,  502. 
Knowlton  v.  Moore,  553. 
Knox  V.  Brady,  268. 
Knox  V.  Leidgen,   555. 
Knox    V.    Cleveland,   569,    570. 
Knox  V.  Baton  Rouge,  533. 


G94 


TABLE  OP   CASES. 


[the  references  are  to  pages.] 


Knox  V.  Jones,  430. 

Koehler  v.  Ball,  504. 

Koelle   V.   Knccht,   363,  364. 

Koerpcr  v.  liy.  Co.,  70. 

Korn  V.  Cutler,  417. 

Kostenboder  v.  Spotts,  503. 

Krant  v.  Crawford,  46. 

Krcichbaum  v.  Melton,  382. 

Kroll  V.  Kroll,  262. 

Kruger  v.  Knob,  566. 

Kruse  v.  Wilson,  192,  228,  302,  304, 

604,  608. 
Kruse  v.  Scrips,  79. 
Kruson  v.  Kruson,  533. 
Kurtz  V.  Hibncr,  409. 
Kurtz  V.  Sponable,  394. 
Kyle  V.  Kavanagh,  345. 

La  Framboise  v.  Crow,  24,  270. 

La  Plante  v.  Lee,  319. 

Laberee  v.  Carlcton,  187. 

Lacey  v.  Davis,  565. 

Ladd  V.  Harvey,  406. 

Laird  v.  Boyle,  352. 

Lake  v.  Gray,  563. 

Lake    Erie    R.    R.    Co.    v.    Whitham, 

204,  225. 
Lallerstedt  v.  Jennings,  406. 
Lamar  Co.  v.  Clements,  176. 
Lamar  v.  Turner,  193,  300. 
Lametti  v.  Anderson,  352. 
Lammers  v.  Nissen,  46,  170. 
Lamb  v.  Davenport,  118,  387. 
Lamb  v.  Wakefield,  199,  249. 
Lambert  v.  Smith,  188. 
Lambert  v.  Livingston,  479. 
Lampman  v.  Milks,  640. 
Lamprey  v.  State,  170. 
Lancaster  v.  Wilson,  521. 
Land  v.  Keirn,  465,  479. 
Landts  v.  Brant,  303. 
Lane  v.  Dover,  113. 
Lane  v.  Soulard,  180. 
Lane  v.  Debenham,  308. 
Lane  v.  Gould,  605. 
Lanfair  v.  Lanfair,  376. 
Lanford  v.  Patton,  467. 
Lang  V.  Phillips,  470. 
Langdon  v.  New  York,  157. 
Langsdale  v.  Mills,  500. 


Langdeau    v.    Hanes,    52,    139,    145, 

146. 
Lain  v.  Cook,  567. 
Lanier  v.  Booth,  26,  640. 
Lansing  v.  Smith,  KM. 
Laramoro  v.  Minish,  601,  602. 
Larder  v.  Collins,  32. 
Large  v.  Fisher,  567. 
Lassell  v.  Powell,  492,  507. 
Lash  V.  Hardick,  469. 
Lash  v.  Lash,  546. 
Latham  v.  Smith,  210. 
Lathrop  v.  Brown,  466. 
Lathrop  v.  Suell,  240. 
Lathrop  v.  Am.  Emig.  Co.,  479. 
Latta  V.   Tutton,  475. 
Lattin  v.  Gillette,  6,  9. 
Laughlin  v.  Fream,  214. 
Laverty  v.  Moore,  605. 
Lawe    v.    Hyde,    183. 
Lawrence's  Will,  436. 
Lawrence  v.  Farley,  207. 
Lawrence  v.  Ball,  397. 
Lawrence  v.  Belger,  466. 
Lawrence  v.  Fast,  472. 
Lawrence  v.  Englesby,  489. 
Learned  v.  Welton,  308. 
Leavell  v.  Poore,  458. 
Leaver  v.  Gauss,  247. 
Leazuro  v.  Hillegas,  277. 
Le  Beau  v.  Armitage,  51. 
Lee  V,  Ruggles,  536. 
Leeming  v.  Sheratt,  419. 
Leese  v.  Clark,  156. 
Lessee  of  Johnston  v.  Haines,  234. 
Lefevre  v.  Lefevre,  428. 
Legget  V.  Doremus,  21. 
Leitch  V.  Wells,  73,  457,  522. 
Leiter  v.  Sheppard,  19,  413. 
Lehndorf  v.  Cope,  189,  241. 
Leland  v.  Wilson,  300,  301. 
Lennartz  v.  Quilty,  400. 
Lenox  v.  Clark,  301,  510. 
Leon   Loan  Co.   v.   Equalization   Bd., 

13. 
Leonard  v.  Diamond,  295. 
Leonard  v.  Sparks,  492. 
Le  Franc  v.  Richmond,  202. 
Le  Moyne  v.  Quimby,  318. 
LeRoy  v.  Jamison,  150,  153,  154,  155. 
Leupold  V.  Kruse,  23. 


TABLE  OF  CASES, 


695 


[the  references 
Levi  V.   Thompson,  134. 
Levy  V.  Levy,  578. 
Levy  V.  Griffiths,  421. 
Lewis,  In  re,  325. 
Lewis  V.  Aylott,  405. 
Lewis  V.  Owen,  483. 
Lewis  V.  Marshall,  75,  587. 
Lewis  V.  Darling,  405,  432. 
Lewis  V.  Overby,   202. 
Lewis'  Appeal,  41. 
Liddel  v.  McVickar,  583. 
Life    Ass'n    of    America    v.    Fassett, 

476. 
Life  Ins.  Co.  v.  Norton,  58. 
Life  Ins.  Co.  v.  Smith,  279. 
Life  Ins.  Co.  v.  Wliite,  284,  390. 
Lick  v.  Bay,  637. 
Light  V.  West,  563. 
Liles  V.  Woods,  527. 
Lincoln  v.  Davis,  49. 
Lindley  v.  O'Eeily,  442. 
Lindsay  v.  Pry,  604. 
Lindsey  v.  Bates,  452. 
Lindsey  v.  Thompson,  41. 
Lines  v.  Lines,  296. 
Lingen  v.  Lingen,  574. 
Linker  v.  Long,  245. 
Lillard    v.    Ruckers,    250. 
LUly    v.    Palmer,    374. 
Lirette  v.  Carrane,  472. 
Litchfield   v.    Burwell,    526. 
Little  V.  Harvey,  469. 
Little  V.   Paddelford,   11. 
Little  V.  Megquier,   604. 
Little  V.  Dodge,  268. 
Little  V.  Giles,  424. 
Littlejohn   v.   Egerton,   22. 
Livermore  v.   Maxwell,  400. 
Littleton   v.    Giddings,    64. 
Livingstone   v.   McDonald,   224. 
Lloyd  v.  Bunce,  220. 
Locke  v.  Caldwell,  397. 
Lockett  V.   James,   24. 
Lockhart  v.   Wyatt,   826. 
Lockwood   V.    R.   R.    Co.,   46. 
Lockwood    V.    Sturdevant,    318. 
Logan  V.  Steel,  42. 
Logan  V.  Ward,   607. 
Logansport  v.  Dunn,  177. 
Lombard  v.  Culbertstand,  72. 
Lombard  v.  Sinai  Congregation,  287. 


ARE  TO  PAGES.] 

Long  V.  Hewitt,  34. 

Long  V.  Wagoner,  190. 

Long  V.   Shelby   Co.,   357. 

Long  V.  Mostyn,  386. 

Long  V.  Weller,   503. 

Long  V.  Barker,  518. 

Long   V.    Linn,    535. 

Long   V.    Burnett,   567. 

Loomis   V.   Riley,    302,   522. 

Looney    v.    Adamson,    268. 

Lorrillard  v.  Coster,  430. 

Loughridge  v.  Rowland,  69. 

Louisville    Dry    Goods    Co.    v.    Lan- 

man,  325. 
Louisville  School  Board  v.  King,  56. 
Loving  V.   Paire,  329. 
Lovering   v.   AUen,   433. 
Lovett  V.  Steam  Mill  Assn.,   282. 
Lovingston    v.    St.    Clair    Co.,    46. 
Low  V.  Graff,  216. 
Lowns  V.  Remsen,  477. 
Lowry   v.    Davis,    388. 
Loyless  v.   Blackshear,  250. 
Lucas  V.  Harris,  398. 
Luce  V.  Durham,  408. 
Lum  V.  McCarty,  60,  63. 
Luppie  V.  Winans,  585. 
Lupton    V.    Lupton,    429,    431. 
Lyon  V.  Vannatta,  321. 
Lyon  V.  Hunt,  564. 
Lyon  V.  Marsh,  420,  421. 
Lyon  V.   Kain,  213,  487,  574. 
Lytle  V.  Arkansas,   114. 
Lytle  V.  Beveridge,  407. 

McAlister  v.  Butterfield,  408. 
McAllister  v.  Plant,  393. 
McAllister  v.  McAllister,  428. 
McArthur  v.  Browder,  157. 
McAusland  v.  Pundt,  492. 
McBane  v.  Wilson,  466. 
McCabe  v.  Raney,  43. 
McCabee  v.  Mazzuchelli,  162. 
McCall  V.  Niely,   604. 
McCardia  v.  Billings,  222,  223. 
McCarley  v.  Supervisors,  202. 
McCartrey  v.  Kittrell,  472. 
McCarty  v.  Carter,  454. 
McCartney  v.   King,   493. 
McChesney   v.   Brown 's   Heirs,   262. 
McCraney  v.   McCraney,  269. 


696 


TABLE  OF   CASES. 


[the  references 
McCready  v.  Sexton,  565,  569. 
MfClollan  v.   Darrnh,  rAO. 
MoOlcllan  v.  Kellogg,  602. 
Mi-riintic    V.    Ocheltrcc,    262. 
MeClintock  v.  Kogers,  78. 
McChire  v.  Burris,  1595. 
MeClurg  v.  Phillips,  384. 
MoClurkcn  v.  Logan,  456. 
McCliirken   v.  Detrich,  540. 
McConnell  v.  Smith,  320,  413. 
McConville   v.   Howell,   578. 
McCoraher  v.  Commonwealth,  104. 
McComiick   v.   Sullivant,   29. 
McCormaek    v.    Patchin,    552. 
McCormick  v.  Huse,  171. 
McCowan  v.   Foster,  512. 
McCoy  V.  Morrow,  582,  583. 
McCracken   v.   San   Francisco,   ;^61. 
McCurdy  v.  Canning,  26;i. 
McDanicl    v.    Johns,    246. 
McDcrmid   v.    Russell,   524. 
McDonald   v.    Gregory,   41. 
McDonald  v.  Life  Ins.  Co.,  502. 
McDonald  v.  Edmonds,  141. 
McDonald  v.  Bear  River  Co.,  289. 
McDonald  v.   Smalley,   157. 
McDuff   V.   Beauchamp,   263,   264. 
McFarland  v.  Febiger,  269. 
McGan    v.    O'Neil,    536. 
McGarrahan  v.  Mining  Co.,  151,  154, 

155. 
McGinty  v.  McGinty,  296. 
McGoon  V.  Scales,  29,  188. 
McGowan    v.    McGowan,    322. 
McGraw  v.   Bayard,   520. 
McGrew  v.  McCarty,  455. 
McGuire  v.  Van  Pelt,  394. 
McGuire  v.  Stevens,  341. 
McHany  v.  Schenk,  504. 
Mclntyre  v.  Storey,  50,  518. 
Mclntyre  v.  Mclntyre,  532. 
Mclntire  v.   Benson,  327. 
Mclver  v.  Walker,  158. 
McKcnnan,    In    re,    553. 
McKinney   v.    Stewart,   33. 
McKinney  v.   Settles,  188. 
McKinzie  v.  Steele,  43. 
McLane  v.  Bovee,  113. 
McLangan  v.  Brown,  502. 
McLaughlin   v.   McLaughlin,   427. 
McLaughlin  v.  McCroby,  526. 


ARE  TO   rAGE.S.] 

McLaughlin    v.    Thompson,   555. 
Mcfjaughlin  v.   Ihmsen,  389. 
McLauric  v.  I'artlow,  296. 
McLean  v.  In  re,  62. 
McLean    v.    McBcan,   581. 
McLcndon   v.    State,   524. 
McLouth   v.   Hurt,  69. 
McMicken   v.  U.  S.,  109. 
McMillan  v.  Warner,  22. 
McMillan   v.   Edwards,   304. 
McMullen   v.   Lank,   307. 
McNab  V.  Young,  634. 
McNeeley  v.  Langan,  607. 
McNeil   V.  Kendall,  355. 
McPherson  v.  Rollins,  400. 
McQuiddy  v.  Ware,  610. 
?klcQuic  v.   Peay,   384. 
McVey   v.    McQuality,   287,   376. 
McWhorter   v.    McMahon,    341. 
Mabury   v.   Ruiz,   542. 
Machcmer,  Estate  of,  432. 
Mack   v.    Brown,    525. 
Mack   V.   Wetzler,  370,  396. 
Mackay    v.    Bloodgood,    202. 
Mackic   v.   Cairns,   326. 
Mackie    v.    Story,    408. 
Madden   v.   Barnes,   452. 
Ma  gee   v.    Mellon,   301. 
Maghoe  v.  Robinson,  638. 
Magruder  v.   Eamay,   141. 
Magness  v.  Arnold,  224. 
Magill  v.  Hinsdale,  289. 
Magnolia  v.  Marshall,  46. 
Magruder  v.  Esmay,  113. 
Mahar  v.  O'Hara,  405. 
Mahoney  v.  Middleton,  535. 
Main  v.  Cumston,  364. 
Mandeville   v.  Welch,  344. 
Malcom  v.  Allen,  383. 
Mallory  v.  Fergusen,  10. 
Mallory  v.  Mallory,  257. 
Ma  lone,   In   re,    597. 
Mallony  v.  Horan,  24.  43,  269. 
Manderschid  v.  Dubuque,  176. 
Manf.  Co.  v.  East   Saginaw,  552. 
Mangold  v.  Barlow,   69. 
Mangje  v.  Mangue,  591. 
Mann  v.  Reigler,  27. 
Mann  v.  Best,  236. 
Manley  v.  Gibson,  177. 
Mansfield   v.   Hoagland,  495, 


TABLE  OF  CASES. 


697 


[the  references 
Mapes  V.  Scott,  142. 
Marburg  v.  Cole,  263. 
Marden  v.  Chase,  235. 
Markwell  v.  Thorne,  442. 
Markoe  v.  Andras,  453. 
Marling  v.   Marling,  540. 
Marsh  v.  Chestnut,  558. 
Marsh  v.  Griffin,  608. 
Marshall   v.   Marshall,   530. 
Marshall  v.   Roberts,   235. 
Marshall  v.  Rose,  573. 
Marshnian   v.   Conklin,   482. 
Martin  v.  Ry.  Co.,  252,  284. 
Martin  v.   Wyncoop,   323. 
Martin   v.    Martin,    258. 
Martin  v.  Beasley,  318. 
Martin  v.  Kirby,  419. 
Martin  v.  Dryden,  450. 
Martin   v.   Williams,   489. 
Martin  v.  Judd,  633. 
Martin  v.  Zellerbach,  43. 
Martindale  v.  R.  R.  Co.,  277. 
Martinez  v.  Vives  Succession,  586. 
Marvin  v.  Smith,  24,  269,  295. 
Marvin  v.  Titsworth,  369. 
Marvin  v.   Dutcher,  530. 
Marx  v.   Hawthorn,  565. 
Matney  v.  Graham,  303. 
Mathews  v.  Blake,  567. 
Matthews  v.   Skinner,  275. 
Matthews  v.  Eddy,  505. 
Matthews  v.  Demerritt,  639. 
Mattis  v.  Robinson,  608. 
Mattocks  V.  Brown,  245. 
Mattox  V.  Hightshue,  43,  271. 
Mash  V.  Russell,  386. 
Mason  v.  Osgood,  320. 
Mason  v.  Gray,  372. 
Mason  v.  Ainsworth,  395. 
Mason  v.  Brock,   181,  225. 
Mason  v.  Jones,  408. 
Massie  v.  Watts,  535. 
Massingill  v.  Downs,  467,  469. 
Mast«rson  v.   Check,   208. 
Mastin   v.   Halley,  222. 
Maunday   v.  Vail,   479,   482,  521. 
Maul  V.  Rider,  68. 
Mabldin  v.  Cox,  602. 
Maurior  v.  Coon,  303. 
Maurr  v.   Parish,  511. 
Maxwell  v.   Hartman,  73. 


ARE  TO  PAGES.] 

Maxwell  v.  Dental  Mfg.  Co.,  387. 
Maxwell  v.  Jonesbro,  357. 
Maxwell    v.    Stewart,    472. 
May  v.  Le  Clair,  236. 
May  V.  Fletcher,  580. 
May  V.  Baker,  461. 
Mays  V.  Rogers,   583. 
Maxbury   v.   Ruiz,   542. 
Mayo  V.  Libby,  39,  146. 
Mayo  V.  Wood,  41. 
Mayo  V.   Foley,  301,  510. 
Meade    v.    Jennings,   415. 
Meach  v.  Fowler,  184. 
Meacham   v.    Steele,   502. 
Meachan  v.  Williams,  66. 
Meader  v.   Norton,  51. 
Meagher  v.   Thompson,  290. 
Mears  v.   Howarth,  518. 
Mechanics  Bid.  Assn.  v.  Whitacre, 
M.   E.   Church  v.  Hoboken,   50. 
Methodist   Church   v.   Chicago,   552. 
Meek   v.   Breckenridge,   26. 
Meek  v.  Bunker,  496. 
Meeker  v.  Meeker,  186. 
Mcetze   v.    Padgett,   507. 
Mehan  v.  Williams,  453,  640. 
Megerle  v.  Ashe,   116,  136,  146. 
Meister  v.  Moore,  591. 
Melia  v.  Simmons,  512. 
Melvin  v.  Waddel,  613. 
Melvin  v.  Clark,  525. 
Melvin  v.  Whiting,  45,  611. 
Menage  v.  Burke,  182. 
Mendenhall  v.  Treadway,  458. 
Merchant  v.   Woods,  398. 
Meredith  v.  Little,  479,  521. 
Merriam  v.  Dovey,  565. 
Merrick  v.  Merrick,  410. 
Merrick  v.  Hutt,  461. 
Merrill  v.  Bickford,  431. 
Merrill  v.  Emery,  420. 
Merrill   v.   Burbank,  361. 
Merrill  v.  Burbank,  186. 
Merrill  v.   Hutchinson,  236,  237. 
Merrill  v.  Montgomery,  282,  525. 
Merritt  v.  Merritt,  22. 
Merritt  v.  Disney,  189. 
Merritt   v.    Yates,   224. 
Merritt    v.    Morton,    579. 
]VIerritt  v.  Brantly,  423. 
Messersehmidt  v.  Baker,  508. 


698 


TABLE   OF    CASES. 


[THE   REFERENCES 

Metcalfe  v.  Braiulou,  208. 

Meyer  v.  Graeber,  383. 

Meyer  v.  Fegaly,  487,  488. 

Meyer   v.   McDougal,   583. 

Meyers  v.  Buchanan,  71. 

Meyers  v.  Croft,  IVA,  114,  117. 

Meyers  v.  Ladd,  192. 

Meyers  v.  Eeed,  263. 

Meyers  v.  Anderson,  413. 

Meyers  v.  Rasback,  518. 

Meyers  v.  Tyson,  469. 

Mick  V.  Mick,  578. 

Middleton  v.  Smith,  190. 

Middleton  v.  Findla,  201. 

Middleton     Sav.     Bk.     v.     Bacharach, 

560,  561. 
Milford  V.  Worcester,  589. 
Millard  v.   McMullen,  610. 
Miller  v;  Bledsoe,  575,  581. 
Miller  v.  Mills,  525. 
Miller  v.  Ruble,  200. 
Miller  v.  Ware,  232. 
Miller  v.  Thompson,  255. 
Miller  v.   Corey,   340. 
Miller  v.  Flournoy,  410,  411. 
MUler  V.  Handy,  509,  523. 
Miller  v.  Sherry,  457,  458,  460. 
Miller  v.  Aldrich,  383. 
Miller  v.  Wilson,  303,  493. 
Miller  v.   Ewing,  236. 
Miller  v,  Marx,  23. 
Miller  v.  Lapham,  27. 
Miller   v.   Williams,   31. 
Miller  v.  Hepburn,  48. 
Millett   V.    Pease,    525. 
Millikan  v.   Patterson,   565. 
Mills  V.  Hoag,  478. 
MUtmore  v.  Miltmore,  546. 
Miner   v.    Brown,    265. 
Miner,   In   re,   597. 
Miners  Ditch  Co.   v.   Zellerbach,   282. 
Mines  v.   Mines,  69. 
Mining  Co.  v.  Herkimer,  276. 
Minnesota,    etc.,     Co.     v.     McCrossen, 

290. 
Minot  V.  Curtis,  428. 
Minot  V.  R.  R.  Co.,  552. 
Mirfitt  V.  Jessop,  413. 
Mitchell  V.  Pettee,  42. 
Mitchell  V.  Mitchell,  246. 
Mitchell   V.   Schoonover,  470. 


AKE  TO  PAGES.] 

Mitchell  V.  Haven,  301. 

Mitchell  V.  Winslow,  387. 

Mitchell  V.  Burnhani,  395. 

Mitchell  V.  Wood,  466. 

Mitchell  V.  Robertson,  534. 

Mitchell  V.  Williams,  551. 

Mitchell  V.  Bartlett,  207. 

Mix  V.  French,  582. 

Mod.   Woodmen  v.    Gerdom,    586. 

Moffat  V.  Carrow,  415. 

Moffitt  V.   Moffitt,   511,  513. 

Mohr  V.  Tulip,  511,  514. 

Moiston  V.  Hobbs,  199. 

Moingona  Coal  Co.  v.  Blair,  565,  613. 

Monaghan  v.  Small,  503. 

Monroe  v.  Jones,  417. 

Montague  v.  Dawes,  314,  393. 

Montgomery  v.   Johnson,   192,   512. 

Montgomery  v.  Hornberger,  223. 

Montgomery  v.  Dorion,  289. 

Montz  V.  Hoffman,  265. 

Moody   V.    Fislar,   452. 

Moody  V.  Moody,  602. 

Mooers  v.  White,  434. 

Mooney  v.  Cooledge,  195. 

Moore  v.  Jordan,  116. 

Moore   v.   Wilkinson,    138. 

Moore  v.  Robbins,  150. 

Moore  v.  Moore,  210. 

Moore  v.   Simmons,  250. 

Moore  v.  Pickett,  366. 

Moore  v.   Wade,   375. 

Moore  v.  Cornell,  394. 

Moore  v.  Neil,  498. 

Moore   v.   Aldermen,   547. 

Moore   v.   Burrows,  340,  584. 

Moore   v.    Cliandler,    573. 

Moore  v.  Lyons,  419. 

Moore  v.  Giles,  208. 

Moore  v.  Snow,  155. 

Moran  v.  Dillehay,  407,  416. 

Moran  v.  Palmer,  154. 

Morano  v.  Shaw,  8. 

Moreland  v.  Lawrence,  520. 

Morgan  v.  Curtcniu.s,  116. 

Morgan  v.  Clayton,  198,  235. 

Morgan  v.  Bergen,  341. 

Morgan  v.  Pope,  419. 

Morgan  v,  Bause,  494. 

Morgan  v.  Hammett,  374. 

Morice  v.  Bishop  of  Durham,  427. 


TABLE   OF    CASES. 


699 


[the  references 
Morley  v.  Daniel,  245. 
Morrill  v.  Chapman,  113. 
Morrill  v.  Noyes,  387. 
Morrill  v.  Graham,  655. 
Morris  v.  Candle,  181. 
Morris  v.  McMorris,  210. 
Morris  v.  State,  368. 
Morris  v.  Eobey,  493. 
Morris  v.  Schallsville,  547. 
Morris  v.  Halbert,  596. 
Morris  v.  Turnpike  Eoad,  55. 
Morris  v.  Hogle,  503,  513. 
Morrison  v.  Caldwell,  42,  184. 
Morrison  v.  Rossignol,  353. 
Morrison  v.  Kelly,  65. 
Morrison  v.  Morrison,  66. 
Morrison  v.  Seybold,  264. 
Morrison  v.  King,  640. 
Morrison  v.  Silverburgh,  524. 
Morrow  v.  Scott,  31. 
Morrow  v.  Weed,  511. 
Morrow  v.  WMtney,  52,  139. 
Morse  v.  Carpenter,  182. 
Morton  v.  Greene,  534. 
Moseley  v.  Mastin,  102. 
MosMer  v.  Meek,  452. 
Mosheimer  v.  TJssleman,  586. 
Moseley  v.  Wingo,  440. 
Moss  V.  Atkinson,  341. 
Moughon  V.  Masterson,  385. 
Moulton  V.  Macarty,  484. 
Mounce  v.  Beyers,  344. 
Mount  Pleasant  v.  Breese,  357. 
Mountour  v.  Purdy,  497. 
Mowry  v.  Crocker,  329. 
Mulford  V.  Beveridge,  321. 
Mulford  V.  Peterson,  394. 
MuUanphy    Savgs.    Bank    v.    Schott, 

284. 
MuUins  V.  Aiken,  503. 
Mullins  V.  Sparks,  525. 
Mumford  v.  Whitney,  27. 
Mundorf  v.  Howard,  348. 
Murdock  v.  Ward,  416. 
Murfree  v.   Carmack,  470. 
Murphy  v,  Gabbert,  247. 
Murphy  v.  Mayor,  etc.,  636. 
Murphy  v.  McGrath,  368. 
Murphy  v.  Hendricks,  380. 
Murry  v.  Blackledge,  182. 
Murry  v.  Lybum,  458. 


ARE  TO  PAGES.] 

Musgrove  v.  Bonser,  70, 
Mushlitt  V.  Silverman,  453,  455. 
Musick  V.  Barney,  69. 
Musser  v.  Hershey,  160. 
Musser  v.  McEea,  152. 
Myler  v.  Hughes,  479. 
Myer  v.  Ladd,  223. 
Myer  v.  McDougal,  320. 
Myer  v.  Wilson,  467. 

Nash  V.  Towne,  257. 
National  Bank  v.  Jaggers,  485. 
Neal  V.  Nelson,  216. 
Neal  V.  Speigle,  543. 
Negbauer  v.  Smith,  192. 
Neff  V.  Pennoyer,  510. 
Neiswanger  v.  Gwyne,  556. 
Nellis  V.  Lathrop,  608. 
Nelson  v.  Ferris,  394. 
Nettleton's  Appeal,  553. 
Nevius  V.  Gourley,  423. 
New  V.  Sailors,  381. 
Newell  V.  Newell,  187. 
Newell  V.  Nichols,  588. 
Newbold  v.  Boone,  410. 
Newcomb  v.  Presbrey,   198. 
Newcomer  v.  Wallace,  318. 
Newman  v.  Jenkins,  586. 
Newman  v,  Fisher,  330. 
Newman  v.  Willetts,  442. 
Newton  v.  Fisher,  63. 
Newton  v.  McKay,  183. 
Newsom  v.  Thompson,  250. 
Neufville  v.  Stewart,  366. 
Nichols  V.  Nichols,  124. 
Nichols  V.  Emery,  296. 
Nichols  V.  Postlethwaite,  432. 
Nichols  V.  Mitchell,  511. 
Nicholson  v.  Caress,  188,  235. 
Nicol  V.  R.  R.  Co.,  547. 
Nicoll  V.  Scott,  320. 
Niles  V.  Sprague,  589,  590. 
Nixon  V.  Downey,  527. 
Nixon  V.  Cobleigh,  500. 
Nixon's  Appeal,  257. 
Noland  v.  Barrett,  501. 
North  V.  Belden,  388. 
North  V.  Knowlton,  388. 
Norton  v.  Kearney,  327. 
Norton  v.  Reardon,  501. 
Norton  v.  Dow,  524. 


700 


TABLE   OF    CASES. 


[the   KErERENCES 

Norris'  Case,  liSO. 
Norris  v.  He,  458,  460. 
Xorvell  V.  Walker,  202. 
Norris  v.   Thompson's  Heirs,  427. 
Nowell  V.  Rragdon,  583. 
Nowlin  V.  Reynolds,  603,  607. 
N.  W.  Iron  Co.  v.  Mead,  540. 
Nugent  V.  R.  R.  Co.,  43. 

Oakes  v.  Williams,  466. 

Oaksmith  v.  Johnson,  612. 

Gates  V.   Beckwith,   611. 

O'Brien  v.  Perry,  112. 

O'Brien  v.  Gaslin,  504. 

O'Brien  v.  Creig,  536. 

Ochoa  V.  Miller,  303,  440. 

Ochiltree  v.  McClurg,  186. 

Odd   Fellow's  Bank  v.  Banton,  388. 

Odiorne  v.  Wade,  45. 

Odell  V.  Montross,  371,  372,  375. 

Odle  V.  Odle,  522. 

O'Gara  v.  Eisenlohr,  586, 

O 'Grady  v.  Barnishel,  565. 

OgdcMi  V.  Jennings,  26. 

Of,'drn  V.  Walters,  223. 

Ogdcn  V.  Walkers,  388. 

Ogle  V.  Turpin,  342. 

Okeson's  Appeal,  431. 

Olcott  V.  Robinson,  497. 

Olds  V.  Cummings,  395. 

Olive  V.  Armour  &  Co.,  326. 

Oliver  v.  Stone,  207. 

Oliver  v.  Crosswell,  540. 

Oliver  v.  Robinson,  554. 

Oliver  v.  Pratt,  236. 

Oliver  v.  Craswell,  614. 

Olney  v.  Hall,  425. 

Olson  V.  Merrill,  46. 

Omnia nny  v.  Butcher,  428. 

Or.  &  Wash.  Trust  Co.  v.  Shaw,  375. 

OrendorfF  v.  Stanbcrry,  523. 

Oniishv  V.  Terry,  503. 

O'Roiirkc  V.  O 'Conner,  608,  639. 

Orrick   v.   Boehm,  432,  433. 

Orr  v.  O'Brien,  441. 

Orthwein  v.  Thomas,  591. 

Osborn  V.  Adams,  29. 

Oatrom  v.  Curtis,  520. 

Osterberg  v.  Union  Trust  Co.,  555. 

Osgood  v.  Blackmore,  497. 

Osgood  V.  Abbott,  196. 


ARE  TO  PAGES.] 

Oswald  V.  Gilfert,  353. 
Ottawa  V.  Spencer,  552. 
Overseers  v.  Sears,  279. 
Owen  V.  Baker,  225. 
Owen  V.  Williams,  246. 
Owen  V.  Reed,  311. 
Owen  V.  Navasota,  493. 
Owens  V.  Miss.  Soc,  428, 
Oxley  V.  Lane,  410. 
Oxnard  v.  Blake,  207, 

Pac.   Coast   M.   &  M.   Co.   v.   Sprago, 

155. 
Packard  v.  Ames,  196. 
Padgett  V.  Lawrence,  183. 
Page  V.  Rogers,  28. 
Page  V.  Palmer,  196. 
I'age  V.  Greely,  346. 
Page  V.  Trutch,  655. 
Paige  V.  Sherman,  187. 
Paige  V.  Chapman,  395. 
Paige  V.  Foust,  417. 
Paine  v.  Hollister,  262. 
Paine  v.  Hutchins,  613. 
Palmer  v.  Palmer,  208. 
I'almer  v.  Ford,  253. 
Palmyra  v.  Morton,  357. 
Panola  Co.  Sup.  v.  Gillen,  455. 
Pardon  v.  Dwire,  525. 
Paris  V.  Mason,  54. 
Parish  v.  Ward,  578. 
Park  Comm'rs  v.  Armstrong,  55. 
Park  Comm  'rs  v.  Taylor,  49. 
Parker  v.  Foy,  187. 
Parker  v.  Sexton,  556. 
Parker  v.  Parker,  411. 
Parker  v.  Parmlee,  345. 
Parkhurst  v.  Race,  .521. 
Parks  V.  Hall,  371. 
Parks  V,  Parks,  408. 
Parks  V,  Jackson,  460. 
Parkinson  v.  Trousdale,  459. 
Parniley  v.  Buckley,  344. 
Parrat  v.  Ncligh,  501. 
Parrett  v.  Shabhut,  69,  203. 
Parsel  v.  Stryker,  354. 
Parsell  v.  Thayer,  389. 
Parsley  v.  Nicholson,  482. 
Parsons  v.  Noggle,  372,  449. 
Parsons  v.  Wells,  541. 
Parsons  v.  Hoyt,  458. 


TABLE   OF    CASES. 


701 


[the  references 
Parsons  v.  Venzke,  78. 
Parsons  v.   Commissioners,   127. 
Passmore's  Appeal,  419. 
Patch  V.  White,  410. 
Pate  V.  Bushong,  19,  410. 
Patterson  v.  Swallow,  433. 
Patton  V.  Hoge,  377. 
Payson  v.  Hadduck,  582.        > 
Peabody  v.  Hewitt,  214. 
Peabody  v.  Brown,  182. 
Peak  V.  Wendel,  112. 
Peak  V.  Ligon,  479. 
Pearse  v.  Pearse,  624. 
Pearson  v.  Bradley,  498. 
Pearsons  v.  Tucker,  456. 
Pease  v.  Pilot  Knob  I.  Co.,  618. 
Peay  v.  Little  Rock,  552. 
Peck  V.  Arehart,  231,  232. 
Peck  V.  Merrill,  324. 
Peck  V.  Clapp,  638. 
Peckham  v.  Haddock,  230,  415. 
Peel  V.  January,  490. 
Pegues  V.  Warley,  608. 
Peine  v.  Weber,  274. 
Pendleton  v.  Button,  205,  226. 
Pennock's  Estate,  429. 
Pensonneau  v.  Bleakley,  289. 
People  V.  R.  R.  Co.,  46. 
People  V.  Lincoln  Pk.  Comrs.,  161. 
People  V.  Marshall,  551. 
People  V.  Bradley,  552. 
People  V.  Biggins,  558,  559. 
People  V,  Snyder,  206,  208. 

People  V,  Gates,  211. 

People  V.  Herbel,  243. 

People  V.  Livingstone,  17. 
People  V.  Conklin,  56. 

People  V.  Ferry  Co.,  161. 

People  V,  Morrill,  160. 

People  V.  Brialin,  479. 

People  V.  Mauran,  547. 

People  V.  Gilbert,  612. 

People  V.  Reat,  557. 

People  V.  Bernal,  525. 

People  V.  Richards,  60,  63. 

People  V.  Circuit  Judge,  321. 

Peoria  v.  Darst,  231. 

Pepper  v.  O'Dowd,  605. 

Perkins  v.  Dibble,  302. 

Perkins  v.  Pitts,  398. 

Perkins  v.  Wakeham,  526. 


ARE  TO  PAGES.] 
T'erkins  v.  Simnionds,  580. 
Perkins  v.  Swank,  639. 
Perry  v.  Big  Rapids,  13. 
Peter  v.  Veberly,  432. 
Peters  v.  Spillman,  406. 
Peters  v.   Phillips,  341. 
Petition  of  Bateman,  268. 
Petersine  v.  Thomas,  479. 
Peterson  v.  Clark,  377. 
Pettibone  v.  Griswold,  381. 
Pettibone  v.  Hamilton,  533. 
Pettit  V.  Black,  440. 
Pettit  V.  Cooper,  479. 
Petty  V.  Beers,  570. 
Peugh  V.  Davis,  369,  375. 
Peyton  v.  Jeffries,  25. 
Phelps  V.  Smith,  116. 
Phelps  V.  Simons,  264. 
Phelps  V.  Curtis,  326. 
Phillips  V.  Coffee,  281,  496. 
Phillips  V.  Stevens,  352. 
Phillipsburgh  v.  Burch,  406. 
Pick  V.  Strong,  444. 
Picket  V.  Dowling,  53. 
Pickering's  Estate,  591. 

Pickering  v.  Langdon,  410,  411. 

Piel  V.  Brayer,  492. 

Pierce  v.  Milwaukee  R.  R.  Co.,  387. 

Pierre  Mutelle  Case,  153. 

Pike  V.  Galvin,  373. 

Pike  V.  Brown,  255,  349. 

Pike  V.  Wassell,  57. 

Pile  V.  McBratney,  592. 

Pillow  V.  Helm,  453. 

Pillsubury  v,  Mitchell,  199. 

Pillsbury  v.  Kingon,  325. 

Pingree  v.  McDuffe,  26,  640. 

Pingrec  v.  Watkins,  198,  235. 

Pinkhani  v.  Pinkham,  247. 

Pinney  v.  Fellows,  608,  638,  639. 

Pinney  v.  Russell,  487. 

Pitts  v.  Singleton,  316. 

Pitts  V.  Mesler,  440. 

Plater  v.  Cunningham,  353. 

Plumb  V.  Tubbs,  252. 

Poe  V.  Hardie,  22. 

Pollock  V.  Buie,  489. 

Pollock  V.  Maison,  397. 
Pollard  V.  Hogan,  160. 
Pomcroy  v.  Stevens,  67,  638. 
Pool  V.  Potter,  291. 


702 


TABLE   OF    CASES. 


[the  references 
Pope  V.  Cutler,  442. 
Poplin  V.  Mundell,  79. 
Port  V.  Port,  591. 
Porter  v.  Sullivan,  240. 
Porter  v.  Purdy,  512. 
Porter  v.  Vaughan,  531. 
Porterfield  v.  Taliaferro,  582. 
Post  V.  Kearney,  353. 
Potter  V.  Stevens,  394. 
Potts  V,  Davenport,  22,  508. 
Powell  V.  Smith,  374. 
Powell  V.  Knox,  466. 
Powell  V.  Rogers,  479,  495. 
Power  V.  Cassidy,  427. 
Powers  V.  Jackson,  171. 
Powder  Co.  v.  Loomis,  454. 
Pratt  V.  Pratt,  372. 
Prescott  V.  Morse,  320. 
Preston  v.  Morris  Case  Co.,  394. 
Preston  v.  Van  Gorder,  555. 
Prettynian  v.  Barnard,  482. 
Prettyman  v.  Wilkey,  232. 
Pribble  v.  Hall,  268. 
Price  V.  Osborn,  267. 
Prim  V.  Rabateau,  519. 
Pringle  v.  Dunn,  69,  73,  193,  205,  300. 
Pritchard  v.  Brown,  66,  638,  639. 
Probasco  v.  Johnson,  377. 
Proctor  v.  Bigelow,  590. 
Prouty  V.  Mather,  301. 
Provenchere 's    Appeal,    416. 
Providence  v.  Adams,  41. 
Propst  v.  Meadows,  519,  520. 
Proudfoot  V.  Saffle,  26. 
Pryor  v.  Downey,  513. 
Pugh  V.  Holt,  371,  376. 
Pullan  V.  R.  R.  Co.,  275. 
Putnam  v.  Bicknell,  182,  261. 
Pryor  v.  Downey,  513. 
Pynchon  v.  Sterns,  228. 

Quimby  v.  Conlan,  530. 
Quinn  v.  Kenyon,  116. 
Quinn  v.  Rawson,  367. 

Racine  v.  Emerson,  178. 
Raines  v.  Walker,  208. 
Raley  v.  Guinn,  565. 
Riimsdell  v.  Ramsdell,  420. 
Rand  v.  Sanger,  418. 
Rand  v.  Meir,  420. 


ARE  TO  PAGES.] 

Randall  v.  Edcrt,  142. 

Randall  v.  Songer,  527. 

Randolph  v.  Land  Co.,  295. 

Randolph  v.  Carlton,  461. 

Randolph  v.  Metcalf,  472. 

Randolph  v.  State,  61. 

Rankin  v.  Miller,  321. 

Raukin  v.  Schaeffer,  7. 

Rankin  v.  Dulaney,  525. 

Rannels  v.  Rannels,  606. 

Rathgerber  v.  Dupy,  453,  4.")5. 

Rawles  v.  Jackson,  495. 

Rawlings  v.  Bailey,  320. 

Rawson  v.  Fox,  605. 

Ray  v.  Thompson,  469. 

Rayburn  v.  Kuhl,  565. 

Raymond  v.  Haider,  610. 

Read  v.  Whittemore,  42. 

Read  v.  Gather,  429. 

Reasoner  v.  Markley,  118,  387. 

Redden  v.  Miller,  608,  638,  639. 

Reddick  v.  Bank,  528. 

Redfield  Mfg.  Co.  v.  Dysart,  187. 

R«ed  V.  Ash,  270. 

Reed  v.  Jones,  342. 

Reed  v.  Bradley,  281. 

R«ed  v.  Pelletier,  326. 

Reed  v.  Lukens,  340. 

Heed  V.  Reed,  419,  429. 

Reed's  Appeal,  466. 

Reed's  Adm'r  v.  Reed,  4:20. 

Rees  V.  Chicago,  176. 

Reeves  v.  KimbaU,  344. 

Reid  V.  Bd.  of  Education,  177. 

Reid  V.  Merriam,  567. 

R«id  V.  Heasley,  303. 

Reid  V.  Shergold,  619. 

Reinders  v.  Kappelniann,  34. 

Reinhart  v.  Schuyler,  558. 

Remington  Pap.  Co.   v.   O 'Dougherty, 

209. 
Remington  v.  Liuthicum,  505. 
Rhienstrom  v.  Cone,  210. 
Renter  v.  Stuckart,  601. 
Rex  V.  Matherseal,  440. 
Reynolds  v.  Harris,  508. 
Reynolds  v.  Schmidt,  511. 
Reynolds  v.  Scott,  371. 
Rhodes  v.  Blaekiston,  334. 
Rice  V.  R,  R.  Co.,  147. 
Rice  V.  Kelso,  387. 


TABLE   OF    CASES. 


703 


[the  references 
Eice  V.  Bunce,  43. 
Rice  V.  Dewey,  388. 
Rice  V.  Lumley,  546. 
Rich  V.  Doane,  371. 
Richards  v.  Green,  23. 
Richards  v.  Miller,  412,  416. 
Richards  v.  Bent,  199. 
Richards  v.  Crawford,  376. 
Richardson  v.  Thompson,  524. 
Richardson  v.  Clow,  187, 
Richardson  v.  Wicker,  493. 
Richeson  v.  Crawford,  451. 
Richmond  v.  Gray,  15. 
Riddle  v.  Bush,  301,  496. 
Ridgeway  v.  Holliday,  609. 
Ridgeway'a  Appeal,  486. 
Ried  V.  Holmes,  476. 
Eieger  v.  Sehaible,  262. 
Rigdon  V.  Shirk,  636. 
Rigg  V.  Fuller,  610. 
Riggin  V.  Love,  194,  249. 
Riggs  V.  Boylan,  69,  70. 
Rigney  v.  Chicago,  54. 
Rigor  V.  Frye,  27. 
Rindge  v.  Baker,  364. 
Eines  v.  Mansfield,  228. 
Ringhouse  v.  Keever,  580. 
Rings  V.  Woodruff,  603. 
Ripley  v.  Harris,  388. 
Ripley  v.  Gage  Co.,  455. 
Ritchie  v.  Griffiths,  72. 
Eivard  v.  Gardner,  482. 
Elvers  v.  Thompson,  554,  556,  558. 
Eix  V.  Smith,  489. 
Eoane  v.  Baker,  470. 
Eoberson  v.  Wampl«r,  182,  216. 
Eobins  v.  Bunn,  117. 
Eoberts  v.  CleUand,  508. 
Eoberts  v.  Eoberts,  322. 
Roberts  v.  Bassett,  346,  633. 
Roberts  v.  Stowers,  527. 
Roberts  v.  Richards,  602. 
Robertson  v.  Guerin,  300. 
Robertson  v.  Johnson,  415. 
Robertson  v.  State,  591. 
Robinson  v.  Douthitt,  41. 
Robinson  v.  Swift,  519. 
Robinson  v.  Le  Grand,  412. 
Eobinson  v.  Bates,  24. 
Eobinson  v.  Payne,  194. 
Eobinson  v.  Eagle,  263,  264. 


ARE  TO  PAGES.] 

Rockwell  V.  Brown,  186. 

Rockwood  V.  Davenport,  471,  472. 

Roche  v.  Uilmann,  364,  365. 

Roderigas  v.  Savings  Institution,  512. 

Rodgers  v.  Bell,  534. 

Rodgers  v.  Bonner,  468. 

Rodman  v.  Selligman,  553. 

Rogan  V.  Walker,  196. 

Rogers  v.  Clemmans,  117. 

Rogers  v.  Green,  524. 

Rogers  v.  Sinsheimer,  364. 

Rogers  v.  Renshaw,  23. 

EoUin  V.  Cross,  456. 

Eollin  v.  Pickett,  219,  231. 

Eollo  V.  Nelson,  67. 

Eomanow,  Ee,  325. 

Rooker  v.  Perkins,  45. 

Root  V.  McFerriu,  512. 

Roscoe  V.  Lumber  Co.,  442. 

Rose  V.  Taunton,  187. 

Roseboom  v.  Mosher,  327. 

Roseboom  v.  Roseboom,  420. 

Rosenthal  v.  Renick,  450. 

Rosenthal  v.  Mayhugh,  288. 

Rosa  V.  Eoss,  34,  579. 

Ross  V.  Sadgbeer,  187. 

Ross  V.  Faust,  46. 

Ross  V.  Barclay,  320. 

Ross  V.  Worthington,  203. 

Ross  V.  Cobb,  538. 

Eoss  V.  Barland,  556. 

Eoth  v.  Michalis,  294. 

Eothgerber  v.  Dupy,  453,  455. 

Eountree  v.  Talbot,  410. 

Eowe  V.  Becker,  198,  235. 

Eowley  v.  Beerin,  225. 

Rowley  v.  James,  456. 

Rowlings  V.  McRoberts,  247. 

Rozierz  v.  Van  Dam,  518. 

E.  E.  Co.  V.  Ragsdale,  43. 

R.  R.  Co.  V.  Schurmeir,  49,  170. 

R.  R.  Co.  V.  Tevis,  116. 

R.  R.  Co.  V.  Morris,  556. 

E.  E.  Co.  V.  Wasliington  County,  552. 

E.  E.  Co.  V.  E.  E.  Co.,  129,  147,  322. 

E.  E.  Co.  V.  Beal,  217. 

E.  E.  Co.  V.  Burkett,  55,  547. 

E.  E.  Co.  V.  Litchfield,  147. 

R.  E.  Co.  V.  Joliet,  177. 

E.  E.  Co.  V.  Schuyler,  636,  637. 

E.  E.  Co.  V.  Maguire,  552 


704 


TABLE  OF   CASES. 


[the  references 
K.  R.  Co.  V.  Kennedy,  193. 
liubens  v.  Joel,  518. 
llueker  v.  Decker,  495. 
Rucker  v.  Dooley,  536. 
Ruckle  V.  Barbour,  505. 
Rudolph  V.  Rudolph,  419. 
Rufner  v.  McConuell,  221. 
i^^SS  ^'-  Hoover,  455. 
Ruigo  V.  Rotau,  146. 
Rusling  V.  Rusliug,  530. 
Ruslin  V.  Shield,  207. 
Ru&s  V.  Wingate,  225. 
Hussell  V.  Abstract  Co.,  9,  10. 
Russell  V.  R-ausom,  639. 
Russell  V.  Hart,  442. 
Russell  V.  Jackson,  594. 
Russell  V.  Sweezy,  638,  639. 
Russell  V.  Place,  465. 
Russell  V.  Brown,  191,  219. 
Russell  V.  Wliitehead,  133. 
Kussell  V.  Mandell,  71. 
Rustou  V.  Ruston,  411. 
Rutgers  v.  Hunter,  352. 
Ruth  V.  King,  187. 
Rutherford  v.  Tracy,  172. 
Ruttenberg  v.  Main,  341. 
Runyau  v.  Messercan,  396. 
Ryan  v.  Andrews,  32,  580. 
Ryan  v.  Carter,  139,  146. 
Ryan  v.  Carr,  303. 
Ryan  v.  Doyle,  308. 
Ryan  v.  Duncan,  318. 
Ryan  v.  Kilpatrick,  613. 
Ryder  v.  Flanders,  321. 
Ryder  v.  Rush,  335. 
Ryner  v.  Frank,  471. 

Sahnon  v.  Vallejo,  199. 
Sammons  v.  Halloway,  211. 
Samuels  v.  Shelton,  303. 
Sanborn  v.  Robinson,  384. 
Sanborn  v.  Chamberlin,  505. 
Sanders  v.  Eldridge,  192. 
San  Diego  v.  Allison,  536. 
Sands  v.  Davis,  154. 
Sands  v.  Lynham,  56. 
Sands  v.  Hughes,  605. 
Sanger  v.  Craigul,  66. 
Sansberry  v.  McElroy,  574. 
Sanxay  v.  Hunger,  636. 
Sapp  V.  Wightman,  547. 


AKE  TO  P.\GES.J 

Sargent  v.  Howe,  298. 
Saunders  v.  Hart,  44. 
Saunders  v.  Uanes,  188,  231,  249. 
Saunders  v.  Schmaelzle,  191. 
Saunders  v.  Hackney,  201. 
Saunders  v.  Stewart,  375. 
Sawyer  v.  Cox,  78,  282. 
Sayler  v.  Plaine,  20. 
Scanunon  v.  Chicago,  498. 
Scamnion  v.  Swart wout,  499. 
Scanlon  v.  Wright,  183. 
Scarborough  v.  Smith,  536. 
Scarlett  v.  Gorham,  458. 
Schade  v.  Gehner,  7,  8. 
Schaeffer  v.  People,  555. 
Schaeffner's  Appeal,  519. 
Scharfenburg   v.   Bishop,   222. 
Shaw  v.  Williams,  498. 
Schettler  v.  Suiith,  43U. 
Schniedding  v.  May,  64. 
Schiueling  v.  Kriesel,  540. 
Schmuckor  v.   Sibert,  255. 
Schnee  v.  Schnee,  157. 
Schneider  v.  Botsch,  612. 
Schneider  v.  Hutchinson,  612. 
Schofer  v.  Reilly,  395, 
Scholield  v.   Homested  Co.,  199. 
School  District  v.  Taylor,  389. 
School  District  v.  Werner,  466. 
Schott's  Estate,  408,  411. 
Schroeder  v.  Gurney,  536. 
Schulenberg  v.  Harrinian,  129. 
Schumucker  v.  Sibert,  255. 
Schumpert  v,   Dillard,  250. 
Schuruiier  v.  R.  R.  Co.,  46. 
Scofield  V.  Jennings,  213. 
Scofield  v.  Olcott,  433. 
Scofl^  V.  Grandstaflf,  41. 
Scott  V.  Rand,  297. 
Scott  V.  Mann,  323. 
Scott  V.  Simpson,  346,  633. 
Scott  V.  Scott,  481. 
Scott  V.  McNeal,  512. 
Scott  V.  Moore,  519. 
Scott  V.  Elkins,  604. 
Scovill  V.  Griffith,  518. 
Scoville  V.  Hilliard,  536. 
Seckler  v.  Delfs,  396. 
Security  Co.  v.  Longacre,  7. 
Seigneuret  v.  Fahey,  27. 
Seigwald  v.  Seigwald,  420. 


TABLE   OF    CASES. 


705 


[the  befekences 
Sellers  v.  Corwin,  467,  469. 
Semple  v.  Bank,  28. 
Sesterhan  v.  Sesterhan,  481. 
Semal  v.  Roberts,  579. 
Seyler  v.  Carson,  332. 
Seymour  v.  Sanders,  120. 
Seymour  v.  Bowles,  216. 
Sevier  v.  Gordon,  583. 
Shackelford  v.  Todliunter,  23. 
Shaekelton  v.  Siebree,  245,  246. 
Shanks  v.  Klein,  273. 
Shannon  v.  Hall,  388,  389. 
Shattuck  V.  Hastings,  196. 
Sharp  V.  Spear,  55. 
Shaw  V.  Wiltshire,  376. 
Shaw  V.  Williams,  565. 
Shaw  V.  Chambers,  518. 
Shays  v.  Norton,  371,  875. 
Sheaf  V.  Wait,  555. 
Shear  v.  Stothart,  50. 
Shearer  v.  Shearer,  273. 
Shearer  v.  Weaver,  585. 
Sheldon  v.  Carter,  215. 
Sheldon  v.  Rice,  322. 
Shepard  v.  Howard,  269. 
Shepard  v.  Shepard,  389. 
Shepardson  v.  Rowland,  271. 
Sheppard  v.  Thomas,  196. 
Sheridan  v.  Andrews,  535. 
Sherlock  v.  Winnetka,  552. 
Sherman  v.  Abbott,  541. 
Sherman  v.  Hogland,  182,  265. 
Sherman  v.  Kane,  609,  612,  634. 
Sherrid  v.  Southwick,  386. 
Sherwood  v.  Wilson,  402. 
Sherwood  v.  Sherwood,  408. 
Shields  v.  Miller,  303. 
Shields  v.  Roberts,  601. 
Shirk  V.  Gravel  Road  Co.,  494. 
Shivley  v.  Parker,  160. 
Shivers  v.  Simmons,  268. 
Shoat  v.  Walker,  570. 
Short  V.  Conlee,  205,  226. 
Shortall  v.  Hinkley,  254. 
Shreve's  Case,  415. 
Shrew  v.  Jones,  467,  469. 
Shriver  v.  Shriver,  216,  634. 
Shriver's  Lessee  v.  Lynn,  505. 
Shuffleton  v.  Nelson,  607,  608. 
Shumaker  v.  Johnson,  42. 
Shumway  v.  Holbrook,  440. 
Warvelle  Abs. — 45 


AKE  TO  PAGES.] 

Skinner  v.  Wood,  317. 

Skinner  v.  Fulton,  673,  676. 

Sibley  v.  Waffle,  514, 

Sibley  v.  Smith,  565. 

SicelofE  V.  Redman,  411. 

Sickmon  v.  Wood,  220. 

Sidener  v.  White,  532. 

Sigourney  v.  Larned,  69. 

Sillers  v.  Lester,  387. 

Silliman  v.  Cummings,  268. 

Sillyman  v.  King,  113. 

Silver  Camp.  M.  Co.  v.  Dickert,  520. 

Simmons  v.  Fuller,  380,  388. 

Simmons  v.  Wagner,  113. 

Simmons  v.  Thomas,  205. 

Sinnett  v.  Cralle,  492. 

Simpson  v.  Pearson,  40,  43. 

Simpson  v.  Neil,  160. 

Simpson  v.  Blaisdell,  191. 

Sims  V,  Rickets,  261,  265. 

Sims  V.  Hammond,  395. 

Skillen  v.  Wallace,  654. 

Skinner  v.  Wood,  317. 

Skinner  v.  Fulton,  592,  594. 

Slater  v.  Breese,  220,  380. 

Slayton  v.  Singleton,  442. 

Slewers  v.  Commonwealth,  9. 

Sloan  V.  Lawrence  Furnace  Co.,  194. 

Sloan  V.  Sloan,  636. 

Slocum  V.  Slocum,  521. 

Slosson  V.  Lynch,  580. 

Small  V.  Slocumb,  211. 

Small  V.  Field,  225. 

Small  V.  Stagg,  452. 

Smiles  v.  Hastings,  363. 

Smiley  v,  Bailey,  419. 

Smith  V.  Holmes,  7, 

Smith  V.  Chenault,  22. 

Smith  V.  Colvin,  28,  495. 

Smith  V.  Porter,  184. 

Smith  V.  Frankfield,  41. 

Smith  V.  Proctor,  220,  221. 

Smith  V.  Block,  189. 

Smith  V.  Crawford,  219,  220, 

Smith  V.  Garden,  205,  226. 

Smith  V.  Van  Gilder,  227. 

Smith  V.  Dall,  205. 

Smith  V.  Jewett,  253. 

Smith  V.  Hutchinson,  417. 

Smith  V.  Rice,  511. 

Smith  V.  Sheely,  277,  279. 


706 


TABLE   OF    CASES. 


[THE   REFERENCES 

ijmitli  V.  Walser,  308. 

Smith  V.  Cheuault,  472. 

Smith  V,  Bell,  420. 

Smith  V.  Rowland,  452. 

Stiiith  V.  Bradstreet,  461. 

Smitli  V.  Richardson,  530, 

Smith  V.  Bangs,  532. 

Smith  V.  Sherwood,  534. 

Smitli  V.  Crawford,  537. 

Smith  V.  Wood,  540. 

Smith  V.  Messer,  554. 

Smith  V.  Lewis,  561. 

Smith  V.  McConuell,  318,  574. 

Smith  V.  Smith,  584,  586. 

Smith  V.  Robertson,  633, 

Smith  V.  Granberry,  323. 

Smith  V.  Wilcox,  498. 

Smithdeal  v.  Smith,  405. 

Smyth  V.  Taylor,  415. 

Snapp  V.  Pierce,  44. 

Snell  V.  Ins.  Co.,  339. 

Snydacker  v.  Brown,  526. 

Snyder  v.  Palmer,  42. 

Soens  V.  Racine,  552. 

Sohier  V.  Coffin,  254. 

Solomon's  Lodge  v.  Montm-'illin,  280, 

282. 
Sonfield  v.  Thompson,  205,  225. 
Soulard  v.  United  States,  132. 
Soule  V.  Barlow,  603,  613. 
South  Fort  Canal  Co.  v.  Gordon,  492. 
Southern    Cal.    Coll.    Assc.    v.    Busta- 

mete,  282. 
Southern    Bank    v.    Humphreys,    480, 

528. 
Southern  Pac.  R.  R.  v.  Dull,  130. 
Sower  V.  Philadelphia,  360. 
Spackman  v.  Ott,  371. 
Spangler  v.  Sellers,  654. 
Spangler  v.  Brown,  654. 
Sparhawk  v.  Buell,  489. 
Sparrow  v.  Hovey,  602. 
Spaulding  v.  Gregg,  245. 
Spaulding  Mfg.  Co.  v.  Godbold,  274, 

304. 
Speakman  v.  Forepaugh,  633. 
Speck  V.  Pullman  Co.,  505. 
Spence  v.  Armour,  503. 
Spencer  v.  Dearth,  465. 
Sperry  v.  Pound,  252. 
Spight  V.  Waldron,  536. 


ARE  TO  P.\GES.] 

Splahn  V.  Gillespie,  301,  510. 

•Bprague  v.  Wliite,  67. 

Sprig  V.  Moale,  586. 

Springer  v.  Brattle,  236. 

Springer  v.  Sliavender,  512. 

Spurloek  v.  Alleii,  567. 

St.  Luke's  Home  v.  Ass'n  Ind.  Fe- 
males, 428. 

Staak  V.  Sigelow,  182. 

Stadler  v.  Allen,  466. 

Stallings  v.  Stallings,  525. 

Stanelifts  v.  Norton,  383. 

Standen  v.  Standen,  422  . 

Standisli  v.  Lawrence,  364. 

Stanley  v.  Risse,  530. 

Stanton  v.  Embry,  490. 

Stark  V.  Mather,  113. 

Stark  V.  Brown,  613. 

Stark  V.  Starr,  109,  113,  141,  604, 
609. 

Starkweather  v.  Martin,  202. 

Starweather  v.  Bible  Soc,  409. 

Starry  v.  Johnson,  467. 

State  V.  Meagher,  317. 

State  V.  McGlynn,  441. 

State  V.  Ramsburg,  479. 

State  V.  Pepper,  40. 

State  V.  Bra  dish,  42,  89,  90. 

State  V.  Portland  Electric  Co.,  49. 

State  V.  Muncie  Pulp  Co.,  50. 

State  V.  Mcilillan,  63. 

State  V.  Grimes,  64. 

State  V.  Laverack,  54. 

State  V.  Jennings,  289. 

State  V.  Jersey  City,  360. 

State  V.  Fosdick,  275. 

State  V.  Leffingwell,  276. 

State  V.  Raehac,  63. 

State  V.  Roanoke  Nav.  Co.,  502. 

State  V.  Wallace,  589. 

State  V.  Potter,  589,  590. 

State  V.  Williams,  488,  590. 

State  V.  Orwig,  534. 

State  V.  Goodrich,  590. 

State  V.  Armington,  590. 

State  V.  Ames,  596. 

St.  Louis  V.  Rutz,  48. 

St.  Louis,  etc.,  Ry.  Co.  v.  Ramsey,  46. 

St.  Claire  Co.  v.  Livingstone,  46,  48. 

Steel  V.  Cook,  426. 

Steel  V,  Kurtz,  33. 


TABLE  OF  CASES. 


707 


[THE  REFERENCES 

Ste»l  V.  St.  Louis  Smelting  Co.,  152. 

Steele  v.  Boone,  71. 

Steeple  v.  Downing,  556,  565. 

Steere  v.  Steere,  296. 

Stein  V.  Sullivan,  394. 

Stelz  V.  Shreck,  264,  546. 

Steltz  V,  Morgan,  566. 

Stephens  v.  Eeynolds,  348,  354. 

Stephens  v.  Williams,  204. 

Stephens  v.  Evans,  430. 

Stephens  v.  Holmes,  563. 

Stephenson  v.  Cone,  6. 

Stephenson  v.   Wilson,  124. 

Stephenson  v.  Thompson,  303. 

St.  Peters  Church  v,  Bragaw,  609. 

St.  Paul  v.  By.  Co.  612. 

Sterling  v.  Park,  214. 

Sterling  v.  Jackson,  127. 

Sterns  v.  Swift,  269, 

Stevens  v.  West,  183. 

Stevens  v.  Bond,  497. 

Stevens  v.  Brooks,  605. 

Stevens  v.  Eainwater,  453. 

Stevens  v.  Harrow,  255, 

Stevens  v.  Hampton,  205. 

Stewart  v.  Smith,  385. 

Stewart  v.  Stewart,  410,  603. 

Stewart  v.  Pettigrew,  492. 

Stewart  v,   Garvin,   506. 

Stewart  v.  Barrow,  396. 

Stewart  v.  McSweeny,  254. 

Stewartson  v.  Stewartson,  544. 

Stickle 's  Appeal,  411. 

Stiles  V.  Brown,  207. 

Stillwell  V.  Swarthaut,  492. 

Stinchfield  v.  Little,  289. 

Stinson  v.  Eoss,  302. 

Stoddard  v.  Burton,  41. 

Stoddard  v.  Chambers,  150. 

Stoffel  v.  Schroeder,  236. 

Stone  V.  Sledge,  214. 

Storm  V.  Smith,  492. 

Stow  V.  Yarwood,  336. 

Stow  V.  Steele,  300. 

Strauss'  Appeal,  344. 

Streeper  v.  Williams,  347. 

Streeter  v.  Streeter,  353. 

Strickland  v.  Draughau,  192. 

Strickland  v.  Kirk,  340. 

Stringer  v.  Young,  151,  155,  157. 

Strong  V.  Lehmer,  150. 


ARE  TO  PAGES.] 

Strong  V.  Whybark,  237. 

Strong  V.   Converse,  255. 

Strother  v.  Lucas,  39,  145. 

Strother  v.  Law,  394. 

Stuart  V.  Harrison,  453. 

Stuart  V.  Walker,  420. 

Stuart  V.  Allen,  318. 

Stubbs  V.  Sargon,  427. 

Stuller  V.  Link,  205. 

Stump  V.  Jordan,  414. 

Stuphcn  V.  Ellis,  441. 

Sturdevant  v.  Mather,  561. 

Styles  V.  Probst,  267. 

Succession  of  Bogere,  582. 

Sullivan  v.  Sullivan,  536. 

Summer  v.  Mitchell,  204,  210,  222. 

Sumner  v.  Parker,  511. 

Sumner  v.  Williams,  198,  301. 

Summit  v.  Yount,  409. 

Surgi  V.  Colmer,  492. 

Sutherland  v.  Goodnow,  352. 

Sutton  V.  Schonwald,  502. 

Suydan  v.  Thayer,  416. 

Swan  V.  Benson,  452. 

Swan  V.  Yaple,  396. 

Swann  v.  Lindsey,  129,  146. 

Swartz  V.  Leist,  395. 

Sweat  V.  Corcoran,  151. 

Sweet  V.  Mitchell,  371. 

Swegle  V.  Wells,  530. 

Swink  V.  Thompson,  508, 

Sydnor  v.  Palmer,  42. 

Sykes  v.  Sykes,  269. 

Taft  V.  Kessell,  633. 
Taggart  v.  Eisley,  41,  188. 
Taggart  v.  Murray,  411. 
Talbott  V.  E.  E.  Co.,  257. 
Talbot  V.  Hudson,  54. 
Talbot  V.  Todd,  429,  479. 
Tankard  v.  Tankard,  66. 
Tapley  v.  Wright,  8. 
Tate  V.  Pensacola,  etc.,  Co.,  347. 
Tatum  V.  McClellan,  413. 
Taylor  v.  Wright,  565. 
Taylor  v.  Watkins,  45. 
Taylor  v.  Merrill,  540. 
Taylor  v.  E.  E.  Co.,  565. 
Taylor  v.  Preston,  199. 
Taylor  v.  Boyd,  479. 
Taylor  v.  Eeed,  478. 


708 


TABLE   OF    CASES. 


[THE  EEFERENCES 
Taylor  v.  Dodd,  431. 
Taylor  v.  King,  399. 
Taylor  v.  Sutton,  253. 
Taylor  v.  Brown,  113. 
Taylor  v.  Gilpin,  306. 
Taylor  v.  Branham,  472. 
Taylor  v.  Phillips,  596. 
Teabout  v.  Daniels,  604,  608. 
Teft  V.  Munson,  373,  381. 
Ten  Eyck  v.  Witbeck,  237,  255. 
Terrell  v.  Andrew  Co.,  69,  70. 
Terrell  v.  Weymouth,  539. 
Terrett  v.  Taylor,  145. 
Terry  v.  Wiggins,  418,  421. 
Terry  v.  Sisson,  486. 
TerTvilliger  v.  BrowTi,  308. 
Teschemacher  v.  Thomson,  156. 
Teutonia,  etc.,  Co.  v.  Turrell,  206. 
Texas  Land  Co.  v.  Williams,  204. 
Thaley,  In  re,  591. 
Thatcher    v.    St.    Andrews    Ch.,    184, 

207. 
Thatcher  v.  Candee,  298. 

Thatcher  v.  Howland,  269. 

Thatcher  v.  People,  556. 

Thayer  v.  Torry,  219,  345. 

Thayer  v.  Wellington,  433. 

Thaxter  v.  Williams,  455. 

Thielman  v.  Carr,  453,  454,  640. 

Third  Ave.  E.  R.  Co.  v.  Mayor,  519. 

Thomas  v.  Guarantee  Co.,  10. 

Thomas  v.  Carson,  10. 

Thomag  v.  Hanson,  71. 

Thomas  v.  Sayles,  165. 

Thomas  v.  Clark,  326. 

Thomas  v.  Wyatt,  157. 

Thomas  v.  Bartow,  344. 

Thomas  v.  Babb,  607. 

Thomas  v.  Industrial  University,  455. 

Thomas  v.  Desney,  484,  485, 

Thomas  v.  Stickle,  556. 

Thomas  v.  People,  512,  595. 

Thomas  v.  Chicago,  231. 

Thompson  v.  Gregory,  27. 

Thompson  v.  Prince,  135,  146. 

Thompson   v.    Thompson,   184. 

Thompson  v.  Lovrein,  214. 

Thompson  v.  Lambart,  277. 

Tlioinpson  v.  Ludington,  425. 

Thompson  v.  Lee,  485. 

Thompson  v.  McCorkle,  480. 


ARE  TO  PAGES.  I 

Thompson  v.  Craighead,  501. 

Thompson  v.  Ware,  565. 

Thompson  v.  Pioche,  603,  607. 

Thompson  v.  Dearborn,  208,  255. 

Thompson  v.  Lyman,  385,  386. 

Thompson  v.  Schuyler,  534. 

Thompson  v.  Felton,  602. 

Thompson  v.  Burnhans,  639. 

Thompson  v.  Curtis,  364. 

Tliompson  v.  Higginbotham,  368. 

Thorn  v.  Ingram,  320,  504. 

Thornburg  v.  Wiggins,   265. 

Thornton  v.  Grant,  47. 

Thornton  v,  Irwin,  398. 

Thorp  V.  Keokuk  Coal  Co.,  200,  236. 

Thrasher  v.  Ingram,  411. 

Thrasher  v.  Bentley,  328. 

Throckmorten  v.  Price,  09. 

Thuleman  v.  Jones,  471. 

Thurman  v.  Cameron,  289. 

Tibbs  V.  Allen,  525. 

Tibbitts  v.  Tilton,  511. 

Tidd  v.  Eines,  112. 

Tilley  v.  Bridges,  502. 

Tillman  v.  Davis,  416,  580. 

Tilton  V.  Hunter,  65. 

Tilton  V.  R.  R.  Co.,  637. 

Timanus  v.  Dugan,  413. 

Tisdale  v.  Ins.  Co.,  587. 

Tobey  v.  Taunton,  41. 

Todd  V.  R.  E.  Co.,  50. 

Todd  V.  Philhour,  301. 

Tollenson  v.  Gunderson,  220. 

Tolman  v.  Emmerson,  566. 

Tomlin  v.  Matthews,  267. 

Tompkins  v.  Fonda,  24. 

Tompkins  v.  Seely,  344. 

Tompkins  v.  Wiltberger,  526,  528. 

Tone  v.  Wilson,  199. 

Torrey  v.  Deavitt,  394,  395,  401. 

Torrey  v.  Cook,  315. 

Tower  v.  Divine,  374. 

Towles  v.  Fisher,  422. 

Townsend  v.  Coming,  289. 

Townsend  v.  Tallant,  505, 

Townsend  v.  Radcliff,  416,  580. 

Townsend  v.  Reg.  of  N.  Y.,  63. 

Tracy  v.  Kilborn,  423. 

Traeey  v.  Rogers,  455. 

Traynor  v.  Palmer,  221. 

Treadwell  v.  Ecynolds,  208. 


TABLE   OF    CASES. 


709 


[the  references 
Treusch  v.  Shyrock,  456. 
Trim  v.  Marsh,  396. 
Tritt  V.  Roberts,  604. 
Troost  V.  Davis,  518. 
Troy  V.  R.  R.  Co.,  55,  547. 
Truehart  v.  Price,  533. 
Trust  Co.  V.  People,   57. 
Trust  Co.  V.  Shaw,  395. 
Trustees  v.  Beale,  385. 
Trustees  v.  Hovey,  451. 
Trustees  v.  Snell,  497. 
Trustees  v.  Gray,  533. 
Tubbs  V.  Gatewood,  204,  228. 
Tucker  v.  Pield,  219. 
Tucker  v.  Whitehead,  441. 
Tucker  v.  Shade,  468. 
Tufts  V.  King,  67. 
Turner  v.  Smith,  555. 
Turner  v.  Yeoman,  565. 
Turner  v.  Kerr,  375. 
Turner  v.  Ivie,  250. 
Turner  V.  Hoyle,  309. 
Turner  v.  Scott,  247,  435. 
Turner  v.  Jenkins,  482,  528. 
Turner  v.  Watkins,  329,  371. 
Turner  v.  Hall,  613. 
Turney  v.  Chamberlain,  602. 
Turney  v.  Yeoman,  565. 
Turpin  v.  Railroad  Co.,  363,  368. 
Tustin  V.  Faught,  201. 
Tuttle  V.  Churchman,  66,  67. 
Twichell  v.  Mears,  255,  256. 
Tyler  v.  Coulthard,  13. 
Tyler  v.  Reynolds,  30,  34,  576,  585. 

U.  S.  Casualty  Co.  v.  Kacer,  588. 
Ufford  V.  Wilkins,  220. 
Underhill  v.  R.  R.  Co.,  253. 
Union  Mill  Co.  v.  Ferriss,  156. 
Union  College  v.  Wheeler,  395. 
Union  Trust  Co.  v.  Weber,  553. 
United  States  v.  Jones,  54. 
United  States  v.  Brooks,  129. 
United  States  v.  Land  Grant  Co.,  157. 
United  States  v.  Fox,  406,  407. 
United  States  v.  New  Orleans,  552. 
United  States  v.  Fitzgerald,  112,  114. 
United  States  v.  Hoar,  612. 
United  States  v.  King,  109. 
United  States  v.  Perchman,  129,  132. 
United  States  v.  Stone,  150. 


ARE  TO  PAGES.] 

United  States  v.  Schurz,  29,  153. 

Updike  V.   Tompkins,  406. 

Ury  V.   Houston,   318,   320. 

Utz,  Estate  of,  414. 

Van  Aken  v.  Gleason,  388. 

Van   Antwerp,   In   re,   551. 

Van  Cleaf  v.  Burns,  546. 

Van  Cott  V.  Prentice,  296. 

Van  Courtlandt  v.  Kip,  434. 

Van  Dusen  v.  People,  523. 

Van  Honswyck  v.  Wiese,  435. 

Van  Keuren  v.  R.  R.  Co.,  67,  609. 

Van  Keuren  v.  McLaughlin,  329. 

Van  Meter  v.  McFadden,  344. 

Van  Nostrand  v.  Moore,  410. 

Van  Ranselser  v.  Smith,  17. 

Van  Ransslajr  v.  R.  R.  Co.,  26. 

Van  Rensselaer  v.  Hays,  350. 

Van  Ransselser  v.  Gullup,  345. 

Van  Ransselser  v.  Pennimar,  352. 

Van  Riswick  v.  Goodhue,  384. 

Van  Schaac  v.  Robbing,  232. 

Van  Wickle  v.   Calvin,   316. 

Van  Wickle  v.  Landry,  385. 

Vail  V.  Vail,  426. 

Vail  V.  Inglehart,  509. 

Valentine  v.  Rawson,  455,  456. 

Valentine  v.  Britton,  487. 

Valle  v.  Fleming,  504. 

Vallette  v.  Tedens,  9. 

Vallejo    Land    Ass'n    v.    Viera,    380, 

382. 
Vandall  v.  Dock  Co.,  275. 
Vandever  v.  Freeman,  535, 
Vandiver  v.  Roberts,  525. 
Vannatta  v.  Brewer,  351. 
Vancycle  v.  Richardson,  30,  405,  450. 

576,  583. 
Vanzant  v.  Vanzant,  456. 
Vason  v.  Ball,  449. 
Vass  v.  Johnson,  493. 
Vassault  v.  Edwards,  342,  348. 
Vaughan  v.  Bunch,  434. 
Vaughan  v.  Ely,  449,  495,  506. 
Vaughan  v.  Schmalsle,  468. 
Ventress  v.  Cobb,  311,  314,  393. 
Verdin   v.    Slocum,   20. 
Verges  v.  Giboncy,  402. 
Vernon   v.    Morton,    326. 
Vernon  v.   Police  Board,  311. 


710 


TABLE  OF   CASES. 


[the  references 
Vernon  v.  Vernon,  400,  417. 
Videau  v.  Griflin,  290. 
Viele  V.  Judson,  394, 
Village  of  Lee  v.  Harriss,  176. 
Vipond  V.   Hurlbut,  199,  238. 
Virden  v.   Needles,  480. 
Voorhees  v.  Frisbie,  330. 
Voris  V.  Kenshaw,   196. 

Wacek  v.  Frink,  7. 
Wade  V.  Lindsey,  254. 
Wade  V.  Deray,  192,  228,  537. 
Wadhams  v.  Gay,  479. 
Wafjgoner   v.   McLouglilin,   560. 
Wainwright   v.    Tuckerman,   434. 
Wait  V.  Belding,  423. 
Wait  V.  Smith,  69,  283. 
Wakefield  v.  Brown,  215. 
Wakefield  v.  Van   Tassell,  252. 
Wakefield  v.   Bonton,   530. 
Wakefield  v.  Chowen,  7,  9,  89. 
Wallahan  v.  Ingersoll,  597. 
Walbridge  v.  Day,  30,  575. 
Waldron  v.  Tuttle,  590. 
Wales  V.  Bogue,  471. 
Walke  V.   Moody,  493. 
Walker    v.    Matthews,    447. 
Walker  v.   Smallwood,  310. 
Walker  v.  King,  394. 
Walker  v.  Doane,  466. 
Walker  V.  Gary,  482. 
Walker  v.  Goodman,  654. 
Walker  v.  Dement,  395. 
Walker  v.   Craig,  316,  318. 
Walker  v.  Miller,  336. 
Walker  v.  Summers,  372. 
Walker    v.    Cockey,   383. 
Walker  v.  Dennison,  291,  292. 
Wall  V.  Wall,  435. 
Wallace,  Matter  of,  330. 
Wallace  v.  Noland,  579. 
Wallace  "v.  Berdell,  207. 
Wallace  v.  Harmstad,  17,  57,  575. 
Wallace  v.  Wilson,  113,  387. 
Wallace  v.  Monroe,  466. 
Wallace  v.  Harris,  187. 
Wallach  v.  Van  Riswick,  57. 
Wallbridge  v.  Day,  575. 
Waller  v.  Arnold,  314. 
Wallington  v.  Taylor,  431. 
Wallingford  v.  Allen,  261. 


ARE  TO  PAGES.] 

Walsh  V.  Hill,  CU(). 

Walsh   V.  Kirkpatriek,  485. 

Waller  v.  Arnold,  393. 

Walter's  Appeal,  429,  431. 

Walthall  V.  (Jorec,  264. 

Walton  V.  Ilargroves,  452. 

Walton  V.  Cody,  369,  375. 

Wanibough  v.  Sclienk,  586. 

Wangelin  v.  Goe,  532. 

Ward  V.  Mulford,  160. 

Ward  V.  Lumber  Co.,  278,  361. 

Ward  V.  Amory,  420. 

Ward  V.  Gates,  442. 

Warder  v.  Cornell,  347. 

Ware  v.  Johnson,  304. 

Ware  v.  Wisner,  441. 

Warehouse  Co.  v.  Terrill,  505. 

Warfield  v.  Brand,  316. 

Warneke  v.  Lembea,  316. 

Warner  v.  Bull,  254. 

Warner  v.  Bennett,  253. 

Warner  v.  Sharp,  300. 

Warner  v.  Crosby,  386. 

Warner  v.  Bates,  429. 

Warner  v.  Everett,  461. 

Warnock  v.  Harlow,  460. 

Warren  v.  Eichmond,  347,  638. 

Warren  v.  Lynch,  201. 

Warren  v.  Blake,  26. 

Warren  v.  Levitt,  152. 

Warren  v.  Chambers,  48. 

Washburn  v.  Cutler,  571,   605. 

Washburn  v.  Burnham,  69. 

Washburn  v.  Bums,  263. 

Washburn  v.  Fletcher,  341. 

Washington  v.  Hasp,  565. 

Waterloo  Bank  v.  Elmore,  374. 

Waterman  v.  Smith,  156. 

Waterman    Hall    v.    Waterman,    604, 

605. 
W\aters  v.  Bush,  113,  124,  141. 
Waters  v.  Jones,  398. 
Watkins  v.  Hall,  223. 
Watkins  v.  Specht,  307. 
Watkins  v.  Rogers,  345. 
Watson  V.  Water  Co.,  275. 
Watson  V.  Riskmire,  265. 
Watson  V.  Atwood,  565. 
Watson  V.  Tindal,  586. 
Watson  v.  Muirhead,  654. 
Watson  V.  R.  R.  Co.,  547. 


TABLE   OP    CASES. 


711 


[the  references 
Watson  V.  Hoy,  502,   503. 
Watson  V.  Blackwood,  408,  411. 
Watson  V.  Sherman,  290. 
Watrons  v.  Morrison,  78. 
Watrous  v.  Allen,  197. 
Watt  V.  McGalliard,  497. 
Weaver  v.  Peasley,  495. 
Webb  V.  Peale,  187. 
Webb  V.  Mott,  526. 
Webb  V.  Richardson,  604. 
Webber  v.  Townley,  62. 
Weber  v.  Anderson,  608. 
Webster  v.  Conley,  301. 
Webster  v.  Pittsburgh,  etc.,  Ey.  Co., 

610. 
Weckler  v.  Bank,  275. 
Wedge  V.  Moore,  256. 
Weeks  v.  Milwaukee,  552. 
Weeks  v.  Dowing,  71,  103. 
Weichselbaum  v.  Curlett,  608. 
Weidersum  v.  Naumann,  521. 
Weir  V.  Lumber  Co.,  639. 
Weis  V.  Aaron,  476. 
Welch  Y.  R.  R.  Co.,  36. 
Welborn  v.  Anderson,  606. 
Welch  V.  Dutton,  44,  346. 
Welch  V.  Priest,  396. 
Welch  V.  Phillips,  372. 
Welch  V.  Sacket,  207. 
Wells  V.  Bailey,  47. 
Wells  V.  Pennington   Co.,   131. 
Wells  V.  Atkinson,  204,  227. 
Wells  V.  Jackson  Mfg.  Co.,  606. 
Wells  V.  Wells,  265. 
Wells  V.  Stumph,   525. 
Welsh  V.  Joy,  302. 
Welsh  V.  Huse,  407. 
Welsh  V.  Phillips,  372,  396. 
Welsch  V.  Savings  Bk.,  411,  420-421. 
Welton  V.  Atkinson,  205. 
Wentworth  v.  Went  worth,  586. 
Westlake  v.  Westlake,  267. 
West  V.  Wright,   247. 
West  V.  Walker,  262. 
West  Co.  V.  Lea,  325. 
West  Point  Iron  Co.  v.  Reymert,  195. 
Wetmore  v.  Parker,  428,  434. 
Wetmore  v.  Laird,  204. 
Wetmore  v.  Wetmore,  545. 
Wetter  v.  Walker,  413. 
Wickle  V.  Calvin,  316. 


ARE  TO  PAGES.] 

Wider  v.  East  St.  Louis,  551. 

Wier  V.  Simmons,  196. 

Winslow  V.  Goodwin,  19. 

Wisenor  v.  Lindsay,  321. 

Weisner  v.  Zaun,  41. 

Wiggins  Perry  Co.  v.  R.  R.  Co.,  249, 

253. 
Wilbur  V.  Tobey,  597. 
Wilder  v.  Brooks,  265. 
Wilcox  v.  Jackson,  29,  110,  125,  157. 
Wilcox  V.  Bates,  375. 
Wilcoxou  V.  Osborn,  224. 
Wiley  V.  Sirdorus,  195. 
Wiley  V.  Williamson,  395. 
Wilkes  V.  Back,  289, 
Wilks  V.  Burns,  619. 
Wilkius  V.  Tourtellott,  334,  337. 
Wilkinson  v.  Elliott,  547. 
Willamette  Co.  v.  Gordon,  440. 
Willamette  Co.  v.  Hendrix,  475. 
Willard  v.  Cramer,  205,  226, 
Williams  v.  Baker,  206. 
Williams  v.  Wisnor,  329. 
Williams  v.  Merritt,  331, 
Williams  v.  Teachey,  396. 
Williams  v,  Jackson,  399, 
Williams  v.  Williams,  428,  591, 
Williams  v.  Chapman,  454. 
Williams  v.  Johnson,  476,  529, 
Williams  v.  Aniory,  494,  575, 
Williams  v.  Valkenburg,  527. 
Williams  v.  Downes,  525. 
Williams  v.  Townsend,  561. 
Williams  v.  Kirkland,  565. 
Williams  v.  Ewing,  582. 
Williams  v.  Augusta,  357. 
Williams  v.  Wallace,  601. 
Williams  v.  Rhodes,  323. 
Williams  Estate,   586. 
Williams,  In  re,  441. 
Williamson  v.  Berry,  500,  504. 
Williamson  v.  Jones,  502. 
Williamson  v.  Russell,  560. 
Willis  v.  Nicholson,  504. 
Willot  v.  Sanford,  146. 
Wills  V.  Chandler,  505. 
Wilson  V.  Spring,  298. 
Wilson  V.  Owen,  524. 
Wilson  V.  James,  608. 
Wilson  V.  Renter,  384, 
Wilson  V.  Wilson,   30,   247,  253,   544. 


712 


TABLE   OP    CASES. 


[the  references 
Wilson  V.  Thraup,  42. 
Wilson  V.  White,  216. 
Wilson  V.  Carrico,  245,  247. 
Wilson  V.  McKenna,  211. 
Wilson  V.  Lyon,  452. 
Wilson  V.  Hunter,  64. 
Wilson  V.  King,  42. 
Wilson  V.  Sexton,  50. 
Wilson  V.  Russ,  655. 
Wilson's  Exrs.  v.  Van  Leer,  435. 
Winans  v.  Cheney,  192. 
Wing  V.  Dodge,  493,  511,  512. 
Wing  V.  Hall,  571. 
Wing  V.  Cooper,  369,  370,  371. 
Wing  V.  Eailey,  253. 
Wingate  v.  Pool,  317. 
Winkler  v.   Miller,   236. 
Winslow  V.  Winslow,  182,  216. 
Winslow  V.  Goodwin,  19. 
Winter  v.  Stock,  182,  274. 
Winter  v.  Crommelin,  151,  157. 
Winter  v.  Jones,  152. 
Winters  v.  Mears,  529. 
Withers  v.  Pugh,  215. 
Winthrop  v.  Fairbanks,  194. 
Wis.  River  Land  Co.  v.  Selover,  237. 
Wisenor  v.  Lindsay,  321, 
Witham  v.  Brooner,  294. 
Wittenbroek  v.  Wheaton,  116,  117. 
Wheaton  v.  Andress,  417. 
Wheaton  v.  Sexton,  496. 
Wheeler  v.  Smith,  427. 
Wheeler  v.  Hartshorn,  408. 
Wheeler  v.  Spinola,  49. 
Wheeler  v.  Wheeler,  544. 
Wheeler  v.  Clutterbuck,  573,  580. 
Wheeler  v.   Schad,   199. 
Wheeler  v.  Willard,  394. 
Whelan  v.  Sullivan,  341. 
Whetstone  v.  Ottawa  University,  276. 
Whitaker  v.  Miller,  180,  184,  190,  207, 

216. 
Whit<;omb  v.  Rodman,  410. 
White  V.  Whitney,  198,  303. 
White  V.  Hopkins,  246. 
White  V.  Clover,  316. 
White  V.  Clawson,  321,  611. 
White  V.  Rittenmeyer,  372,  449. 
White  V.  Patton,  373. 
White  V.  Foster,  256. 
White  V.  Luning,  192,  299. 


ARE  TO  PAGES.] 

Wliite  V.  Davis,  303. 

Wliite  V.  Moses,  300. 

White  V.  Fisk,  428. 

White  V.  Hampton,  73, 

White  V.  Carpenter,  309. 

White  V.  Hermann,  341. 

Wliite  V.  McGarry,  388. 

White  V.  White,  67,  609. 

White  V.  Fuller,  639. 

WhitelKill  V.  Gottwal,  238. 

Whiteman  v.  Whiteman,  410. 

Whiting  V.  Nicholl,  586. 

Wliiting  V.  Butler,  303. 

^\^litmore  v.  Lamed,  554. 

Whitman  v.  Fisher,  317. 

Whitman  v.  Henneberry,  208,  209,  538. 

Whitmore  v.  Lamed,  630. 

Whitney  v.  French,  397. 

Wliitney  v.  Roberts,  518. 

Whitney  v.  Ry.  Co.,  197, 

Whitney  v.  Whitney,  466. 

Whitridge  v.  Taylor,  330. 

Whitsell  V.  Mills,  269. 

Wood  V.  Goodridge,  289. 

Wood  V.  Sampson,  405,  431. 

Wood  V.  Bank,  367,  005. 

Wood  V.  Beach,  187. 

Wood  V.  Matthews,  440. 

Wood  V.  Calvin,  493. 

Wood  V.  Morehouse,  492. 

Wood  V.  Myrick,  511. 

Wood  V.  Young,  469. 

Wood  V.  Hurd,  50. 

Wood  V.  Griffin,  430. 

Woodley  v.  Gilliam,  496. 

Woods  V.  Monroe,  511,  515. 

Woods  V.  Hildebrand,  370,  449. 

Woodbury  v.  Dorman,  387. 

Woodfin  V.  Anderson,  581. 

Woodman  v.  Clapp,  566. 

Woodward  v.  Roberts,  211. 

Woodward  v.  McReynolds,  116, 

Woodward  v.  Harris,  540. 

Woodworth  v.  Payne,  253. 

Woodworth  v.  Raj-mond,  26. 

Woolsicroft  V.  Norton,  199. 

Wooters  v.  Joseph,  495. 

Word  V.  Douthett,  537. 

Work  V.  Welland,  373. 

Worth  V.  Branson,  113,  114,  141. 

Worrall  v.  Munn,  289. 


TABLE   OF    CASES. 


713 


[the  references 


Wright  V.  Sperry,  199. 
Wright  V,  Tinsley,  348. 
Wright  V.  Dufield,  268. 
Wright  V.  Howell,  255. 
Wright  V.  Marsh,  537. 
Wright  V.  Walker,  561. 
Wright  V.  Young,  449. 
Wright  V.  Day,  170. 
Wright  V.  Dunn,  411. 
Wylly  V.  Gazan,  218. 
WjTnan  v.  Farrer,  195. 

Yackle  v.  Wightman,  480. 
Yahoola  Mining  Co.  v.  Irby,  287. 
Yale  V.  Flanders,  202. 
Yaple  V.  Titus,  476. 
Yarbrough  v.  Pugh,  527. 


ARE  TO  PAGES.] 
Yard  v.  Murry,  433. 
Yarnall's  Appeal,  415. 
Yates  V.  Shaw,  165. 
York  V.  Crawford,  525, 
York  V.  York,  580. 
Yosemite  Valley  Case,  116. 
Young  V,  Duvall,  201. 
Young  V.  Gailbeau,  207. 
Young  V.  Clippinger,  238. 
Young  V.  Young,  262,  433. 
Yount  V.  Howell,  156. 
Youse  V.  Forman,  434. 

Zeigler  v.  Hughes,  384. 
Zahnn  v.  Haller,  201. 
Zirkle  v.  MeCue,  510. 


INDEX 


[the  references  are  to  sections.] 
ABANDONMENT, 

considered  as  a  method  of  acquiring  title,  52. 

of  homestead,  defeats  right  of  exemption,  22. 
ABBREVIATIONS, 

may  be  used  to  advantage,  when,  101. 

may  destroy  abstract  as  evidence,  66. 
ABORIGINAL  TITLE, 

of  what  consisting,  51. 
ABSENCE, 

long  and  unexplained,  when  presumptive  evidence  of  death,  562. 
ABSTRACTS, 

definition  of,  2. 

origin  and  early  use  of,  3. 

essential  matters  to  be  shown  in,  4. 

English  method  of  compilation  of,  5. 

American  method  of  compilation  of,  6. 

distinguished  from  examinations,  7. 

what  constitutes  to  be  merchantable,  7. 

liability  for  erroneous  statements  in,  9. 

client  may  relie  upon  statements  of,  when,  9. 

duty  of  furnishing  devolves  on  whom,  11. 

become  property  of  purchaser,  when,  11. 

compiled  from  oflS.eial  sources  of  information,  58,  76,  89,  90. 

from  private  indices,  67,  74. 

formal  parts  of,  92. 

should  be  written  with  a  pen,  92. 

caption  of,  how  expressed,  93. 

arrangement  of,  94. 

of  instruments  and  proceedings  shown,  95,  97,  98,  100. 

examiner's  notes  in,  how  shown,  98,  100. 

letter  press  copies  of,  102. 

concluding  certificate,  103. 

of  inceptive  measures  under  U.  S.  land  laws,  128. 

of  entries  on  government  tract  books,  129. 

of  receiver's  duplicate  receipt,  134,  135. 

of  legislative  grants,  137. 

of  patents  from  United  States,  149. 

of  subdivision  by  owner,  166. 

of  vacation  of  subdivision  by  owner,  169. 

of  deeds,  parts  to  be  shown,  172. 

of  corporate  conveyances,  250. 

715 


716  INDEX. 

[THE  REFERENCES   ARE   TO   SECTIONS.] 

ABSTHACTS— Continued. 

of  power  of  attorney,  2G;>. 

of  declaration  of  trusts,  267. 

of  sheriff's  deed,  274. 

of  master's  deed,  280. 

of  trustee's  deed,  281. 

of  administrator's  deed,  286,  288. 

of  bankruptcy  proceedings,  293,  301. 

of  land  contract,  316. 

of  leases,  323. 

of  vacation  of  plat,  330. 

of  official  certificates,  334,  44.1. 

of  party  wall  agreement,  337. 

of  affidavit,  329. 

of  mortgage,  342,  351. 

of  wills,  413,  417. 

of  probate  proceedings,  417. 

of  court  proceedings,  501,  521. 

of  probate  sales,  494. 

of  tax  sale  certificates,  534. 

of  tax  deed,  535. 

of  tax  title,  how  compiled,  540. 

of  proof  of  death,  564, 

of  descent  in  probate,  568. 

of  adverse  titles,  573. 

methods  of  perusal  of,  591. 

printed  copies  of,  opinions  concerning,  612. 

analysis  of,  600. 

method  of  compiling  in  New  England,  Ap. 
ABSTRACT  BOOKS, 

taxation  of,  12. 

exemption  of  from  execution,  13. 

how  compiled  and  used,  78,  87. 
ACCRETION  AND  RELICTION, 

what  constitutes,  46. 

title  acquired  by,  nature  of,  46,  48. 

rule  for  measurement  of  lands  acquired  by,  46. 

distinguished  from  avulsion,  47. 
ACKNOWLEDGMENT, 

office  and  effect  of,  196. 

how  shown  in  abstract,  196. 

if  defective,  effect  of,  209. 

what  constitutes  defects  of,  209,  210. 

defects  of,  how  noted  in  abstract,  210. 

of  wife's  deed,  formalities  of,  245. 

of  corporate  conveyances,  256. 

by  attorney  in  fact,  how  shown,  262. 

of  sheriff's  deed  essential  to  validity,  275. 
ACTIONS, 

respecting  title  at  law  and  in  equity,  498. 

for  divorce,  should  be  shown,  when,  518. 


INDEX.  717 

[the  refeeences  are  to  sections.] 
ADMINISTRATOE, 

powers  of,  distinguished  from  executors,  286,  287,  288. 

deeds  by,  how  made,  288. 

how  shown  in  abstract,  288. 

with  will  annexed,  powers  of,  289. 
ADMINISTEATION    OF    ESTATES, 

how  shown  in  abstract,  417,  568. 

settlement  without,  effect  of,  570. 
ADOPTION, 

defined,  33. 

effect  of  in  descent  of  estates,  33,  531. 

proof  of  in  case  of  succession,  33,  561. 
ADVERSE  CONVEYANCES, 

how  displayed  in  abstract,  573. 

by  intrusion,  how  shown,  573. 
ADVERSE  POSSESSION, 

character  and  effect  of,  572,  574,  576,  589. 

from  user  only,  578. 

under  color  of  title,  576. 

naked  occupancy  without  claim  is  not,  579. 

tacking  of  successive  holdings  by,  580. 

constitutes  notice,  581. 

as  between  co-tenants,  578. 

cannot  be  established  against  remainder-men,  583, 
or  reversioners,  584. 
or  persons  under  disability,  586. 
or  the  State,  588. 

proofs  to  support  title  by,  590. 
ADVERSE  SEIZIN, 

will  not  prevent  valid  conveyance  of  land,  233. 
ADVERSE  TITLE, 

general  characteristics  of,  572,  576. 

how  shown  in  abstract,  573. 

who  may  acquire,  582. 

proofs  to  support,  590. 
AFFIDAVITS, 

of  matters  in  pais,  are  required  when,  339. 

how  shown  in  abstract,  329,  339. 

general  requisites  and  sufficiency  of,  339,  340. 

of  domestic  condition,  339. 

of  pedigree,  form  of,  599. 

of  nonresidence,  when  required,  505. 

of  publication,  478. 
AFFINITY, 

what  is,  and  how  governed,  32. 
AFTER-ACQUIRED  ESTATES, 

when  bound  by  lien  of  judgments,  448,  452. 

effect  of  mortgages  upon,  359. 
AGREEMENTS, 

for  conveyance,  general  doctrines  of,  310. 

for  conveyance  by  deed,  312,  313. 


718  INDEX. 

[THE   REFERENCES   ARE   TO   SECTIONS.] 

AGREEMENTS  —  Continued. 

for  conveyance  by  will,   321. 

for  deed,  performance  of,  318. 

for  party  wall,  effect  of,  337. 
AGRICULTURAL  LANDS, 

what  leases  may  be  made  of,  326. 
ALIENS, 

may  take  by  descent,  550. 

may  not  make  homestead  entries,  127. 
ALIENATION, 

of  land,  what  laws  govern,  28. 

of  the  homestead  only  effectual  when,  22. 
ALIMONY, 

requires  notice  when  a  lien  on  land,  518. 
ALLEGIANCE, 

does  not  relate  to  title  or  imply  feudal  obligation,  IJ 
AMBIGUITY, 

effect  of  and  how  treated,  200. 

in  deeds,  186,  200,  205,  208. 

in  wills,  381,  382,  387. 
AMERICAN, 

method  of  compiling  abstract,  6. 

doctrines  with  respect  to  title,  18. 

Indian,  title  of,  how  extinguished,  51. 
ANALYSIS   OP   TITLE, 

utility  of  in  examination,  600. 

how  constructed,  601. 

kow  made  in  England,  Ap. 
ANCESTOR, 

who  is  to  be  considered,  542. 

covenants  of,  bind  heir  when,  545. 

debts  of,  affect  heir  how,  545. 

death  of  must  be  proved,  562. 

title  of,  descends  to  heir  by  operation  of  law,  543. 
ANCESTRAL  ESTATES, 

by  what  rule  distributed,  552. 
ANCIENT  DEEDS, 

what  are,  198. 

require  no  proof  of  execution,  198. 
ANTE-NUPTIAL  AGREEMENTS, 

general  provisions  of,  240a. 

will  be  upheld,  when,  240a. 
APPEARANCE, 

effect  of  in  legal  proceedings,  506. 
ARRANGEMENT, 

of  abstract,  suggestions  for,  94. 
ASSESSMENTS, 

special,  how  shown  in  abstract,  541. 
ASSESSORS'    PLATS, 

for  what  purpose  made  and  how  shown,  528. 


INDEX.  719 

[the  references  are  to  sections.] 


ASSIGNEE, 

of  military  warrants  and  land  scrip,  120. 

of  land  contract,  rights  of,  317. 

of  lease,  acquires  what  interest,  327. 

of  mortgage,  rights  of,  366. 

in  bankruptcy,  deed  of,  307. 
ASSIGNMENT, 

as  a  mode  of  conveyance,  228. 

of  military  warrant,  when  permitted,  120. 

for  benefit  of  creditors,  293. 

voluntary,  how  made,  294. 

construction  and  effect  of,  295,  298. 

by  register  in  bankruptcy,  307. 

of  agreements  for  conveyance,  317. 

of  lease,  how  made,  327. 

of  mortgage,  effect  of,  365,  366,  367. 

of  mechanic's  lien,  effect  of,  437. 

of  certificate  of  sales  under  execution,  489. 
ATTACHMENT, 

general   doctrine  of,  444. 

formal  requisites  of,  445. 

how  shown  in  abstract,  445. 
ATTESTATION, 

by  subscribing  witnesses  to  deeds,   195. 
ATTORNEY, 

power  of,  how  shown,  263. 

opinion  of  title  by,  613,  614. 

liability  of  for  erroneous  opinion,  619. 
.ATTORNEY,   IN  FACT, 

conveyance  by,  how  made,  263. 

how  shown  in  abstract,  263. 

purport  and  extent  of  powers  of,  262,  263. 

revocation  of  authority  of,  264. 

substitution  of,  264. 
AVULSION, 

what  is,  and  by  what  laws  governed,  47. 

BANKRUPTCY, 

jurisdiction  and  practice  in,  301,  302. 

nature  and  effect  of,  304. 

proceedings  in,  how  shown  in  abstract,  306. 

register's  assignment  in,  307. 

deed  of  assignee  in,  308. 

effect  of  discharge  in,  309, 
BIRTH, 

of  heir,  affects  tenant  by  curtesy,  23. 

proof  of,  necessary  to  establish  claim  of  heir,  565. 
BONDS, 

for  conveyance,  how  shown,  320. 

of  officials  are  liens  on  land,  when,  429. 


720  INDEX. 

[THE  REKERENCES   ARE  TO   SECTIONS.] 

BOOKS, 

abstract,  how   laid  out  and  kept,   78. 
exemption  of,  from  forced  sale,  13. 
BOUNDARIES, 

of  lands  adjoining  navigable  waters,  48,  165. 
by  lines  of  the  public  surveys,  163,  164,  186. 

CANONS  OF  DESCENT, 

of  what  consisting,  30,  547. 
CAPTION, 

of  abstracts  and  examinations,  93. 

of  opinions  of  title,  614,  616. 
CAVEAT  EMPTOR, 

doctrine  of  applies  to  purchases  at  execution  sale,  472. 
and  from  administrator,  288. 
CERTIFICATES, 

official,  by  custodian  of  records,  72,  334. 

appended  to  abstract  by  examiner,  103. 

how  shown  in  abstract,  334. 

of  proof  of  will,  413. 

of  levy  of  attachment,  445. 

of  publisher,  notice  of  sale,  478. 

of  sale  by  officer,  how  shown,  488. 

of  sale,  assignment  of,  489. 

of  publication  of  notice  of  sale,  478. 

of  sale  for  non-payment  of  taxes,  534. 

of  title,  what  are  and  utility  of,  615. 

deaths,  births  and  marriages,  563. 
CHAIN  OF  TITLE, 

preliminary  sketch  of,  91. 

analytical,  on  examination  of  abstract,  601. 

as  arranged  in  abstract,  94. 
CHANCERY  COURTS, 

jurisdiction  of,  496. 

proceedings  of,  how  shown,  498. 

notice  afforded  by  records  of,  500. 
CHANCERY  PROCEEDINGS, 

method  of  indexing,  85. 

authority  and  jurisdiction  of  courts  in,  496. 

requiring  notice  in  abstract,  498. 

jurisdiction  the  great  essential  in,  499. 

notice  afforded  by  record  of,  500. 

how  instituted  and  conducted,  501,  506. 

how  shown  in  abstract,  504,  509. 
CHARTERS, 

of  corporations,  effect  of  on  titles,  257. 
CHILDREN, 

is  word  of  purchase  not  limitation,  385,  389. 

construed  as  synonymous  -with  issue,  387. 

limitation  of  estate  to,  effect  of,  386. 

does  not  include  grandchildren,  387. 


INDEX.  721 


[the  references  are  to  sections.] 
CHURCH  RECORDS, 

may  be  resorted  to  for  evidence,  73. 
CLASS, 

devise  to,  effect  of,  423. 
CLASSIFICATION   OF  TITLE, 

Blackstone's  distinctions,  16. 

by  courts  of  equity,  16. 
CLOUDS  UPON  TITLE, 

what  are,  and  effect  of,  607. 
COLOR  OF   TITLE, 

what  constitutes,  26,  575. 

entry  under  and  adverse  possession,  576. 
COMPILATION, 

of  abstract,  English  method,  5. 

American  method,  6. 

from  what  sources  of  information,  58,  67,  76,  90. 

from  official  indices,  what  should  be  examined,  67. 

making  the  chain,  91. 

from  private  indices,  74. 

insertion  of  notes  in,  98. 

abbreviation,  when  permissible,  101. 

of  initial  statements,  93. 

of  abstract  books,  78. 
CONDEMNATION, 

proceedings   for,   how   shown,   520. 
CONDITIONS, 

annexed  to  grants,  effect  of,  190. 

will  be  invalid  when,  190,  232. 

how  shown  in  abstract,  232. 

in  mortgages,  effect  of,  355. 

devise  upon,  effect  of,  394,  395. 
CONFIRMATION, 

nature  and  characteristics  of,  50. 

as  basis  of  title  in  foreign  grants,  50. 

how  shown  in  abstract,  132. 

as  a  mode  of  substantive  conveyance,  226. 

of  judicial  sales,  effect  of,  486,  487. 
CONFLICT  OF  LAWS, 

in  alienation  and  descent,  28. 

in  matters  of  assignment  and  insolvency,  299. 
CONFISCATION, 

nature  and  characteristics  of,  56. 
CONGRESSIONAL  GRANTS, 

nature  and  effect  of,  138. 

construction  of,  139. 

how  shown  in  abstract,  140. 
CONSANGUINITY, 

defined,  31. 

computation  of  degrees  of,  31. 

table  of  degrees  of,  according  to  the  civil  law,  31. 

Warvelle  Abs. — 46 


722 


INDEX. 


[the  references  are  to  sections.] 
CONSANGUINITY  —  Cotitiwu^d. 
distinguished  from  aflSnity,  32. 
as  affected  by  statutes  of  adoption,  33. 
CONSIDERATION, 

as  expressed  in  deeds,  effect  of,  179,  180. 
CONSTRUCTION, 

of  patents  from  U.  S.,  155. 

of  deeds  and  other  instruments,   186,  1214. 

of  wills,  521. 
CONSTRUCTIVE  NOTICE, 

general  doctrines  of,  62. 

afforded  by  public  records,  64,  65. 

by   records,   rigidly  construed,   65. 

distinguished  from  actual  notice,  63. 

not  impaired  by  destruction  of  records,  66. 

judgments  and  decrees  rendered  upon,  462. 
CONSTRUCTIVE   POSSESSION, 

distinguished  from  actual,  577. 

of  lauds  held  adversely,   577. 
CONTINGENT  REVERSION, 

under  wills,  how  created,  397. 
CONTINGENT  REMAINDERS, 

under  wills,  how  construed,  389,  394,  396. 
CONTRACTS  FOR  CONVEYANCE, 

general  remarks  concerning,  310. 
t       relation  of  parties  under,  311. 

effect  and  operation  of,  312. 

nature  and  formal  requisites  of,  313. 

how  affected  by  recording  acts,  314. 

construction  of,  315. 

how  shown  in  abstract,  316. 

performance  of  suflSciency  of  deed  and  title,  318. 

effect  of  assignment  of,  317. 

effect  on   title   when  forfeited,   319. 

in  form  of  bond,  effect  of,  320. 

by  will,  validity  of,  321. 
CONTINUATIONS, 

of  abstracts,  caption  of,  93. 
CONVEYANCES, 

by  heirs,  what  facts  jurisdictional,  36. 

should  be  rejected,  when,  36. 

by  pre-emptioners  before  entry,   112,   113. 

of  homestead  claim   before  maturity,   117. 

by  way  of  legislative  grant,  effect  of,  124,  125,  137,  149. 

from  the  U.   S.  government,   125. 

from  the  state,  138,  157. 

between  individuals,  212. 

derived  from  the  common  law,  224. 

of  future  interests  and  estates,  229. 

to  become  operative  only  at  death  of  grantor,  229. 

of  special  interests  and  qualified  estates,  230. 


INDEX.  723 


[the  references  are  to  sections.] 
CONVEYANCES  —  Continued. 

restrictive  or  conditional  in  character,  232. 

of  lands  held  in  adverse  possession  of  another,  233. 

in  fraud  of  creditors,  234. 

subject  to  incumbrance,  235. 

intended  for  marriage   settlement,  240. 

to  husband  and  wife,  effect,   241. 

between  husband   and  wife,   242. 

by   married  women,   243,   244. 

of  lands  held  in  common,  247. 

to  effect  partition,  248. 

of  partnership  lands,  249. 

by  or  to  corporations,  2nO,  255. 

post  obit,  effect  of,  261. 

by  delegated  autliority,  262. 

in  trust,  for  what  purposes  permitted,  265. 

made  in  oflBcial  character,  270. 

by  trustees  of  legal  estate,  281,  283,  284. 

by  mortgagees,   285. 

by  executors  and  administrators,  286. 

by  guardians  and  conservators,  290. 

by  way  of  voluntary  assignment,  293. 

through  bankruptcy  proceedings,  306,  308. 

agreements  for,  nature  and  requisites,  313. 

by  will,  agreements  for,  321. 

intended   as   security   only,  effect   of,   348. 

by  way  of  devise,  376. 

how  affected  by  liens  and  incumbrances,  418. 
by  lis  pendens  and  attachment,  439. 
by  judgments  and  decrees,  449. 

resulting  from  judicial  and  execution   sales,   274,   280. 

resulting  from  tax  sales,  535,  539. 

of  adverse  interests  and  estates,  573,  580. 
COPARCENERS, 

who  are,  and  by  what  rules  governed,  554. 
COPIES, 

of  abstract  should  be  preserved  by  examiner,  102. 

printed,  of  abstracts,  value  of,   612. 
CORPORATIONS, 

right  of,  to  acquire,  hold  and  transmit,  250,  252. 

as  affected  by  statutes  of  mortmain,  251. 

conveyances  by  and  to,  254,  255. 

execution  of  deeds  by,  256,  258. 

municipal,   may   hold   land   when,   253. 
COVENANTS, 

classified  and  distinguished,  191. 

operation  and  effect  of,  191. 

defects  of  form  or  substance  in,  208. 

operate  by  estoppel,  when,  42. 

not  implied  in  official  deeds,  273. 

in  leases,  effect  of,  324. 


724  INDEX. 

[the  references  are  to  sections.] 
COVENANTS  —  Continued. 

implied  in  leases,  what  are,  325. 

in  mortgages,  effect  of,  353,  354,  355. 

eflfect  of,  in  party  wall  agreement,  337. 

of  ancestor,  affect  heir  how,  557. 
CREDITORS, 

assignment  for  benefit  of,  293. 

liens  of,  on  decedent's  real  estate,  557,  558. 
CURTESY, 

tenancy  by  in  the  United  States,  23. 

DATES, 

of  deed  not  essential,  177. 

of  registration  should  be  shown,   178. 

disparities   of,  how  shown,   203. 
DEATH, 

proof  of  essential  to  rights  of  heir,  35. 

how  shown  in  case  of  succession,  562. 

how  shown  in  abstract,  562,  563,  568. 

as  shown  by  proceedings  in  probate,  569. 

affects  sale  on  execution  how,  479. 
DEBTS, 

are  a  charge  on  land,  when,  557. 

of  ancestor,  liability  of  heir  for  payment  of,  557. 

of  testator,  liability  of  devisee  for,  405. 

devisee  for  payment  of,  when  regarded  as  money,  406. 
DECLARATION  OF  TRUST, 

how  made  and  shown,  267. 
DECREES, 

defined  and  distinguished,  446,  460. 

operation  and  effect  of,  461. 

rendered  on  constructive  notice,  462. 

lien  of,  463. 

formal  requisites  of,  464. 

how  shown  in  abstract,  465. 

errors  and  defects  in,  how  treated,  466. 

rendered  in  foreign  jurisdiction,  470. 

in  probate,  effect  of,  469. 
DEDICATION, 

consists  of  what,  49. 

at  common  law  and  under  statute,  49. 

by  plat,  effect  of,  170. 

by  deed,  form  and  effect  of,  236. 
DEED, 

title  by,  what  is,  38. 
DEEDS, 

operative  parts  of  to  be  considered,  172. 

names  of  parties  in,   173,  174,   175. 

necessity  and  effect  of  consideration  for,  179,  180. 

special  words  of  limitation,  purchase,  etc.,   181,   182. 

description  of  property  in,  183,  186. 


INDEX.  725 

[THE  REFERENCES   ARE  TO   SECTIONS.] 

DEEDS  —  Continued. 

special  recitals  of,  187. 

exceptions,  conditions,  etc.,  189,  190,  191. 

facts   of  execution  considered,   192. 

delivery   of,  necessity  for,  197. 

operation  and  effect  of  ancient  deeds,   198. 

stamps,  necessity  for  and  how  shown,  199. 

erroneous  recitals  in,  how  shown,  200,  203. 

may  be  effective  though  grantor  is  not  specifically  named,   200. 

misdescription  of  property,  205,  207, 

defective  execution  of,  209. 

classified  and  distinguished,  213. 

how  shown  in  abstract,  216,  217. 

statutory  forms  of,  223. 

common  law  forms  of,  224. 

of  qualified  estates,  230,  231. 

by  way  of  conveyance  in  future,  229. 

to  take  effect  at  death  of  grantor,  229. 

restrictive  and  conditional  clauses  in,  190. 

dedication  by,  236. 

particular  classes  of,  by  individuals,  240. 

to  effect  a  partition,  248. 

of  corporations,  250. 

by  "heirs  at  law,  effect  of,  36,  260. 

by  attorney  in  fact,  262. 

by  sheriff,  on  execution,  274. 

by  master,  commissioners,  or  referees,  280. 

by  trustees,  281. 

by  mortgagees,  285. 

by  executors  and  administrators,  286. 

by  guardians  and  conservators,  290. 

of  voluntary  assignment,  294. 

by  assignee  in  bankruptcy,  307,  308. 

agreement  for,  313. 

of  vacation  of  plat,  169. 

absolute,  will  be  treated  as  mortgage,  348. 

of  trust  in  nature  of  mortgage,  363. 

issued  on  tax  sales,  535,  539. 

shown  adversely,  573. 
DEED  POLL, 

defined  and  distinguished,  21.3. 
DEGREES, 

of  consanguinity,  how  computed,  31. 
DELIVERY, 

of  U.  S.  patents,  not  essential,  151. 

of  deeds,  is  essential  to  transfer  title,  197. 

presumption  of  from  recording,  197. 
DESCENT, 

title  by,  defined,  29,  542. 

by  what  laws  governed,  28,  29,  30,  543,  547. 


726  INDEX. 

[the  references  are  to  sections.] 
DESCENT  —  Continued. 

rules  in  the  United  States,  ;50,  547. 

operation  and  incidents  of  title  by,  543. 

wlio  may  take  by,  546,  550. 

what  property  passes  by,  555. 

how  affected  by  ancestral  covenants,   556. 

how  affected  by  creditors '  liens,  558. 

may  be  defeated  by  equitable  conversion,  559. 

validity  of,  how  established,  560. 

how  shown  in  abstract,  564,  568. 
DESCRIPTION   OF   PROPERTY, 

sufliciency  and  constriutiou  of,  18.5. 

uncertainty  and  error  in,  how  shown,  205. 
DKSERT  LAND  ACT, 

entries  of  public  land  under,  118. 
DESTRUCTION  OF  RECORD. 

does  not  impair  constructive  notice  of  same,  66. 
DEVISE, 

title  by,  what  is,  39,  376,  377. 

operation  and  effect  of,  378. 

rules  of  construction  of,  381. 

affected  how,  by  words  of  purchase  and  limitation,  385. 

rule  in  Shelly 's  case  applied  to,  386. 

of  real  estate,  what  words  are  necessary,  388. 

to  a  class,  effect  of,  390. 

with  power  of  disposition,  construction  of,  392. 

of  indeterminate  character,  how  construed,  393. 

on  condition  precedent,  effect  of,  394. 

with  remainder  over,  396. 

to  married  woman,  398. 

to  executors  in  trust,  399. 

to  beneficiary  by  description  only,  400. 

with  precatory  words  annexed,  effect  of,  401. 

with  suspension  of  power  of  alienation,  402. 

will  lapse  when,  403. 

for  the  payment  of  debts,  404. 

subject  to  payment  of  debts,  effect  of,  405. 

will  work  equitable  conversion,  when,  406. 

of  the  residuum,  effect  of,  407. 

of  the  income  of  realty,  effect  of,  391. 
DEVISEE, 

takes  by  descent,  when,  383. 

nature  of  the  title  acquired  by,  376. 
DISABILITY, 

persons  under,  exceptions  in  favor  of,  586. 
DISCHARGE, 

in  bankruptcy,  how  shown,  309. 

of  mortgage,  368,  371. 

of  lien  of  judgments,  459. 
DISPOSAL  OP  PUBLIC  LANDS, 

effected  by  what  system,  106. 


INDEX.        ^  727 


[THE  REFERENCES  ARE  TO   SECTIONS.] 

DISPOSAL  OF  PUBLIC  LANDS  —  C'oniinwed. 

by  public  sale,  107. 

by  private  entry,  108. 
DIVISIONS, 

of  the  public  domain,  161. 
DIVORCE, 

lien  of  decree  for,  463. 

effect  of  on  titles,  518. 

proceedings  in,  how  shown  in  abstract,  518. 
DOCUMENT  NUMBER, 

index  of,  how  kept,  79. 
DONATION  ENTRIES, 

of  public  lands,  how  effected,  115. 
DOWER, 

definition  of,  23,  423. 

nature  of  estate  conferred  by,  23. 

how  conveyed  or  barred,  23,  246. 

right  of,  not  affected  by  execution  sale,  when,  481. 

proceedings  for,  how  shown  in  abstract,  517. 
DUPLICATES, 

how  shown  in  abstract,  238. 

EASEMENTS  AND  SERVITUDES, 

defined,  distinguished,  25,  336. 

how  acquired  or  lost,  25. 

distinguished  from  license,  25. 

when  inquiries  should  be  made  with  regard  to,  GIG. 
EJECTMENT, 

effect  of  judgment  in,  511. 
EMINENT   DOMAIN, 

nature  of  the  right,  53. 

character  of  title  acquired  by,  5.'!,  54. 

actions  in  exercise  of,  519. 

matters  to  be  noticed  in  abstract  of,  520.  ■ 
ENGLISH   METHODS, 

of   compiling   abstract,   5. 
ENTAIL, 

to  what  extent  permitted,  182,  386. 
ENTRY, 

of  public  lands,  108. 

nature  of  title  conferred  by,  109. 

what  land  subject  to,  110. 

how  shown  in  abstract,  129. 
EQUITY, 

of  redemption,  what  is,  342,  343. 

will  treat  deed  as  mortgage,  when,  348. 
EQUITABLE  CONVERSION, 

what  is,  and  how  effected,  406. 

may  defeat  succession  of  heir  when,  599. 


728  INDEX. 

[the  references  are  to  sections.! 
EQUITABLE  MORTGAGES, 

general  doctrines  respecting,  348. 

deeds  in  form  may  be  decreed,  348. 
ERROR, 

liability  of  examiner  for,  9. 

in  deeds  and  other  instruments,  200. 

of  description,  in  deeds,  205. 
and  mortgages,  352. 

in  opinion,  liability  of  counsel  for,   619. 
ESCHEAT, 

origin  and  former  nature  of,  55. 

nature  of  at  present  time,  55,  571. 
ESTATE, 

distinguished  from   title,   14. 

as  affected  by  uses  and  trusts,  20. 

by  exercise  of  powers,  21. 

of  homestead,  of  what  consisting,  22. 

by  entirety,  how  created,  241. 

in  common,  how  held,  247. 
ESTATES, 

under  allodial  titles,  19. 

under  existing  laws,  19. 

of  dower  and  curtesy,  23. 

for  years,  nature  of,  24. 

of  decedents,  how  deduced  from  probate  proceedings,  569. 

settlement  of  without  probate,  570. 
ESSENTIALS, 

of  abstract  of  title,  4. 
ESTOPPEL, 

defined  and  distinguished,  41. 

elements  of,  41. 

classification  of,  technical,  42. 

equitable,  43. 

does  not  affect  sovereign  power,  43. 

applies  to  mortgages,  346. 

of  a  judgment,  extends  to  what,  42. 

by  deed  is  raised  in  what  manner,  43. 
EXAMINER, 

necessary  qualifications  of,  8. 

is  liable  for  erroneous  certificate,  when,  9. 

conditions  necessary  to  fix  liability  of,  9. 

duty  of,  in  expositions  of  title,  9. 
EXAMINER'S  NOTES, 

should  be  inserted  when,  98,  218. 
EXAMINATION, 

of  title,  distinguished  from  abstract,  7. 

liability  for  error  in,  9. 

of  ofl&cial  indices  and  records,  67. 

of  abstract  by  counsel,  593,  594. 
EXCEPTIONS, 

distinguished  from  reservations,   189. 

how  created  and  shown,  189. 


INDEX.  729 

[the  references  are  to  sections.] 


EXECUTION, 

of  judgments,  475,  476. 

sales  under,  effect   of,   471. 

must  conform  to  judgment,  475. 

levy  of,  how  made  and  returned,  476. 

how  shown  in  abstract,  454. 

of  deeds,  formalities  required,  192,  209. 

of  deed  of  corporation,  256. 

of  deed  of  attorney  in  fact,  263. 

sale  of  abstract  books  under,  13. 
EXECUTION  SAI.es, 

defined  and  distinguished,  471. 

validity  and  effect  of,  472. 

purchaser  at,  takes  subject  to  all  equities,  472. 

title  under,  extends  to  what,  473. 

title  vests  under,  when,  474. 

dependent  on  validity  of  writ,  475. 

as  effected  by  levy,  476. 

notice  of,  how  given,  477. 

affected  how  by  death,  479. 

exemptions   from,   480. 

followed  by  deed,  how  shown,  472. 
EXECUTION  or  DEEDS, 

consists   of  what,   192,  210. 

various  parts  of,  how  shown,  193,   210. 
EXECUTORS   AND   ADMINISTEATORS, 

nature  of  power  held  by,  286. 

deeds  and  conveyances  by,  286,  287. 

vsdth  will  annexed,  powers  of,  289. 

devises  to,  in  trust,  399. 
EXEMPTION, 

from  the  lien  of  judgments,  458. 

inquiry  concerning,  should  be  made  when,  480. 

of  abstract  books  from  forced  sale,  13. 
EXPEESS  TRUSTS, 

for  what  purposes  created,  20. 
EXTENT  OF   SEARCH, 

in  compiling  abstract  of  title,  90. 

FEE  SIMPLE, 

estate,  signifies  what,   19. 
FIELD  NOTES, 

of  government  siirveys,  importance  of,  77. 
FLAWS, 

in  title,  of  what  consisting  and  how  remedied,  606. 
FORECLOSURE, 

of  mortgage,  general  observations,  .372,  516. 

of  mortgage,  by  advertisement,  373. 

proof  of  title  under,  373. 

of  mechanics'  liens,   438. 

actions  of,  how  shown  in  abstract,  516. 


730 


INDEX. 


[THE   REFERENCES    ARE   TO    SECTIONS. 

FOREIGN  PROBATE, 

effect  of,  and  how  shown,  41(i. 
FORFEITURE, 

defined   and   distinguished,   57. 

for   nonpaynuMit   of   taxes,   how    shown,   r,29. 
FRAMING   OPINIONS, 

general  remarks  upon,   G04. 
FRAUDULENT  CONVEYANCKS, 

consideriil   witli  respect  to  ab.stracts  tlieroof,  2:!4. 

GENERAL  LAND   OFFICE, 

records   of,   wlien    recourse   must    he   Imd    to,    1")2. 
GOVf-:RNMENT  SURVEYS, 

character  and  effect  of,  77, 
GRADUATION  ENTRIES, 

of  public  lands,  how  effected,  114. 
GRANTS, 

under  swamp  land  act,  122. 

in  aid  of  education,  123. 

in  aid  of  internal  improvements,   124. 

in  aid  of  railroads,  125. 
GUARDIANS, 

deeds  and  conveyances  by,  290. 

HABENDUM, 

of  deeds,  office  of,  188, 
HALF  BLOOD, 

children  of,  participate  equally,  552. 
HEIRS, 

who  are,  30,  547. 

conveyances  by,  effect  of,  36,  260,  570. 

when  regarded  as  a  word  of  purclmse,  202. 

post  ohit  conveyances  by,  effect  of,  261. 

entitled  to  representation,  when,  548. 

liability  of  for  ancestral  debts,  557. 

must  establish  death  of  ancestor,  562, 

must  prove  birth  and  legitimacy,  565, 

adoptive,  rights  and  disabilities  of,  551. 

surviving  consorts  may  be  when,  553. 
HEIRSHIP, 

defined,  29. 

rules  governing,  30,  547. 

proof  of,  how  made,  34,  560. 

effect  of  conveyances  by  virtue  of,  36,  260,  570. 

rights  and  privilege's  of,  545. 

dependent  on  fact  of  death,  562. 

accrues  only  to  lawful  issue,  565. 

how  affected  by  creditors'  liens,  558. 
HIGHWAYS, 

on  the  public  lands,  126. 


INDEX.  731 

[THE   REFERENCES   ARE   TO   SECTIONS.] 


HOMESTEAD, 

right  of  in  United  States,  22. 

consists  of  what,  25. 

entries,  under  U.  S.  land  laws,  116. 

mortgages  of,  how  made,  358. 

exempt  from  lien  of  judgment,  458,  480. 

when  inquiries  as  to,  should  be  made,  611. 
HOMESTEAD  ENTEIES, 

of  public  lands,  nature  of,  116. 

rights  acquired  by,  117. 
HUSBAND  AND  WIFE, 

conveyances  to,  effect  of,  241. 

conveyances  between,  242. 

not  heirs  to  each  other,  553. 

IDEM  SONANS, 

with  respect  to  names,  parties  in  deeds,  202. 

with  respect  to  judgment  debtors,  468. 
IMPLIED   COVENANTS, 

in  leases,  what  are,  325. 

from  words  of  grant,  what   are,  181. 
INCEPTION   OF    TITLE, 

presentation  of  different  measures  of,  129, 
INCOME   OF   EEALTY, 

gift  of,  passes  land,  391. 
INCUMBRANCE, 

conveyances  subject  to,  effect  of,  235. 

when  grantee  becomes  liable  for,  235. 
INDENTURE, 

defined  and   distinguished,   213. 
INDETERMINATE  DEVISE, 

construction  of,  393. 
INDEXES, 

official,  in  public  offices,  67. 

grantor  and  grantee,  68. 

plaintiff  and  defendant,  70. 

to  public  records,  not  a  part  of  same,  68. 

importance  of  in   abstract  making,  67,   74. 

inutility  of  "patent"  forms  of,  75. 

of  government  tract  book,  76. 

of  field  notes  of  government  surveys,  77. 

books  of  original  entry,  78. 

of  document  numbers,  79. 

suggestions  for  form  of  entries  in,  80. 

of  tracts  and  parcels,  81. 

of  irregular  instruments,  82. 

of  tax  sales  and  redemptions,  83. 

of  judgments,  84,  85. 

of  names,  86. 

method  of  laying  out  and  keeping,  88. 

scale  for  paging,  88. 


732  INDEX. 

[THE   REFERENCES    ARE   TO    SECTIONS. 

INFANTS, 

effect  of  judgments  against,  457. 
INHERITANCE, 

words  of,  in  deeds,  182. 

as  affected  by  rule  in  Shelly 's  case,  .182. 

not  dependent  on  seizin,  544. 

right  of  in  case  of  adoption,  551,  561. 

tax,  how  construed  and  shown,  523. 
INJUNCTIONS, 

should  be  shown  in  abstract,  when,  510. 
INQUIRIES  IN  PAIS, 

to   demonstrate   adverse  possession,   578,   581,  586. 

to  show  fact  of  death,  562,  599. 

to  prove  birth  and  marriage,  565,  599. 
INSOLVENCY, 

voluntary  assignments  and  bankruptcy,  29.'?. 
INSPECTION, 

of  records,  right  of,  60. 
INSTRUMENTS, 

of  conveyance,  synopsis  of,  95. 

fullness   of   narration   of,   96. 

shown  for  reference,  97. 

references  to  original,  100. 

irregular,  how  shown,  99. 

nature  of,  how  indicated  in  abstract,  176. 
INTERNAL  IIMPROVEMENT   GRANTS, 

for  what  purposes  made,  124,  125. 

nature  of  title  conferred  by,  124. 

how  shown  in  abstract,  124. 
INTESTATE, 

property  signifies  what,  542  note. 
INTRODUCTORY, 

remarks  concerning  abstracts,  1. 

statements  in  abstract,  93,  129. 
IRREGULAR  INDEX, 

how  compiled  and  used,  82. 
IRREGULAR  INSTRUMENTS, 

method  of  compiling  index  for,  82. 

of  what  consisting,  329. 

how  shown  in  abstract,  99,  329. 
ISLANDS, 

ownership  of  and  rules  for  division,  46. 

JOINT  TENANCY, 

deeds  of  land  held  by,  247. 
JUDICIAL  SALES, 

defined  and  distinguished,  471. 

differ  from  execution,  how,  471. 

validity  and  effect  of,  472. 

title  under,  how  construed,  473,  474. 

rights  of  purchaser  at,  484. 


INDEX.  733 

[THE  REFERENCES   ARE   TO   SECTIONS.] 

JUDICIAL  SALES  —  Continued. 

purchaser  may  be  compelled  to  take  title  under,  when,  485. 

must  be  confirmed  to  pass  title,  486,  487. 

certificate  of,  how  shown  in  abstract,  488. 

proof  of  title  under,  how  made,  490. 
JUDGMENTS, 

defined  and  distinguished,  446. 

operation  and  effect  of,  447. 

extent  and  duration  of  lien  of,  450. 

priority  of,  451. 

lien  of  attaches  to  after-acquired  property,  452. 

formal  requisites  of,  454. 

entry  and  docketing  of,  453. 

how  shown  in  abstract,  454. 

satisfaction  and  discharge  of,  459. 

against  deceased  person,  effect  of,  456. 

against  infants,  457. 

against  partners,  448. 

against  plaintiff,  how  shown,  454. 

exemptions  from  lien  of,  458. 

errors  and  defects  in,  how  treated,  466. 

extra-territorial  effect  of,  449. 

sales  under,  471. 
JUDGMENT  INDEX, 

of  examiner,  how  compiled  and  used,  84. 

LAND  CLAIMS, 

private,  nature  of  title  under,  126a. 
LAND   CONTEACTS, 

relation  of  parties  under,  311. 

operation  and  effect  of,  312. 

nature  and  requisites  of,  313. 

as  affected  by  recording  acts,  314. 

construction  of,  315. 

how  shown  in  abstract,  316. 

assignment  of,  operation  and  effect,  317. 

performance  of,  sufficiency  of  deed  and  title  under,  318. 

when  forfeited,  effect  of,  319. 

in  form  of  bond,  effect  of,  320. 
LAND  GEANTS  TO  EAILEOADS, 

how  made,  and  title  conferred  by,  125. 
LAND  MEASUEES, 

tables  of,  in  common  use,  Ap. 

used  in  Spanish-French  grants,  Ap. 

used  in  Spanish-Mexican  grants,  Ap. 

used  in  Texas,  Ap. 
LAND  SCEIP, 

for  what  issued  and  to  whom,  121. 

location  of  public  land  under,  121. 
LAYING  OUT  BOOKS, 

suggestions  in  regard  to,  78. 


734  INDEX. 

[THE   REFERENCES   ARE   TO    SECTION'S.] 

LEASES, 

nature  and  requisites  of,  322. 

formal  requisites  of,  323. 

how  shown  in  abstract,  323. 

effect  of  covenants  and  conditions  in,  324. 

covenants  in  are  implied  when,  325. 

of  agricultural  lands,  effect  of,  326. 

assignments  of,  327. 

are  a  charge  upon  the  fee,  431. 
LEGAL  MEMORY, 

periods  of,  how  fixed,  45. 
LEGISLATIVE   GRANTS, 

nature  and  effect  of,  137,  138. 

rules  of  construction,  relation  to,  139. 

formal  requisites  of,  140. 

how  shown  in  abstract,  140. 
LETTERS, 

or  private  correspondence  may  be  shown  in  abstract,  when,  338. 

practical  example,  338. 
LETTER  PRESS  COPIES, 

of  abstract,  should  be  taken  ])y  examiner,   102. 
LIABILITY, 

of  examiner  for  erroneous  search,  9. 

of  examiner,  character  of,  10. 

of  attorney  for  erroneous  opinion,  619. 
LICENSE, 

distinguished  from  easement,  25. 
LIENS, 

general  doctrines  of,  418. 

how  created  and  exhibited,  419,  421. 

created  by  official  bonds,  430. 

by  reservations  in  deeds,  432. 

in  aid  of  mechanics,  433. 

attach  to  what  estate  or  interest,  435. 

limitation  of,  436. 

of  taxes,  attach  when,  428. 

of  creditors  may  defeat  succession  of  heir,  558. 

of  .iudgments  and  decrees,  449,  450. 
LIMITATION   AND   PRESCRIPTION, 

doctrine    of,    45. 

title  founded  upon,  45. 
LIMITATION, 

and  purchase,  words  of,  182,  385. 

of  estate,  how  created,  216,  385. 

of  liens  of  mechanics  and  others,  43G. 
LIMITATION,   WORDS   OF, 

employed  in  deeds,  182,  216. 

used  in  leases  or  creation  of  lesser  estates,  323. 

how  affected  by  the  rule  in  Shelly 's  case,   182. 
LIS  PENDENS, 

should  be  kept  in  special  books,  69. 


INDEX.  735 


[the  references  are  to  sections.] 
LIS   PENDENS  —  Contiimed. 
general  doctrine  of,  439. 
filing  of  notice  of,  74,  442. 
how  shown  in  abstract,  442. 
failure  to  show  creates  a  liability,  69. 

MAP, 

of  township  subdivision,  161. 

of  sectional  subdivision,  163. 
MARGINAL  DISCHARGE, 

of  mortgage,  effect  of,  371. 
MARGINAL  NOTES, 

how  employed  in  examination  of  abstract,  596. 

of  municipal  ordinances,  330. 

of  recorded  instruments  not  shown,  370. 

of  probate  records,  not  shown,  371. 
MARKETABLE  TITLE, 

elements  which   constitute  a,   604,   605. 
MARRIAGE  SETTLEMENTS, 

legal  effect  of,  240. 
MARRIED  WOMAN, 

conveyances  by,  how  made,  243. 

effect  of  conveyances  by,  244. 

formal  requisites  of  conveyances  by,  245. 

release  of  dower  by,  246. 

abstract  of  release  of  dower  by,  246. 

devise  to,  construction  of,  398. 

may  acquire  title  by  adverse  possession,  587. 
MASTERS, 

certificate  of  sale,  how  shown,  488. 

reports,  how  shown,  507. 
MASTERS'  DEEDS, 

operation  and  effect  of,  280. 

how  shown  in  abstract,  280. 
ItfEANDER  LINES, 

how  run  and  for  what  purpose,  165. 
MECHANICS'  LIENS, 

nature  and  effect  of,  433. 

rules  with  respect  to  priority  of,  434. 

attach  to  what  estates,  435. 

limitation  of,  436. 

foreclosure  of,  438. 

should  be  detected  by  inquiries  n;  pais,  when,  609. 
MERGER, 

general  doctrine   of,  347. 
MILITARY   WARRANTS, 

location  of  public  lands  under,  120. 
MISDESCRIPTION, 

of  parties  to  deeds,  201,  202. 

of  lands  in  deeds,  205. 

in  official  deeds,  277. 


736  INDEX. 

[the  eefekences  are  to  sections.] 
MORTGAGES, 

defined  and  distinguished,  342,  343. 

rights  of  parties  under,  344,  345. 

as  affected  by  estoppel,  346. 

doctrine  of  merger  applied  to,  347. 

deeds  absolute  may  be  decreed  to  be,  when,  348. 

how  shown  in  abstract,  350. 

statutory  forms  of,  351. 

erroneous  description  in,  ."..'32. 

effect  of  covenants  in,  353,  355. 

effect  of  informality  in,  .156. 

when  for  purchase  money,  effect  of,  357. 

of  the  homestead,  how  made,  358. 

of  after-acquired  property,  359. 

how  affected  by  recording  acts,  3G0. 

re-records  of,  how  treated,  362. 

trust  deeds  in  nature  of,  363. 

power  of  sale  in,  how  shown,  364. 

sale  under,  by  virtue  of  power,  364. 

assignment  of,  how  made,  366. 
operation  and  effect  of,  366. 

formal  requisites  of  assignment  of,  367. 

releases  of,  how  made,  368. 
by  trustee,  370. 
on  margin  of  record,  371. 

foreclosure  of,  how  made,  372. 
proof  of  title  under,  373. 
MORTMAIN, 

statutes  of,  how  far  recognized,  251. 
MUNICIPAL  ORDINANCES, 

as  sources  of  information,  72a. 

should  be  shown  in  abstract,  when,  330. 

executive  approval  of,  331. 

operation  and  effect  of,  332. 

and  resolutions,  333. 

NAMES, 

of  judgment  debtors,  466. 

middle  and  initials,  467. 

corrupted  or  abbreviated,  467. 

as  affected  by  idem  sonans,  468. 
NAVIGABLE  WATERS, 

•what  are,  48. 

incidents  of  land  bounding  upon,  40. 
NEW  ENGLAND  ABSTRACTS, 

method  of  compilation  of,  Ap. 
NON-CLAIM, 

deed  of,  what  is,  222. 
NOTARY, 

must  afl&x  seal  to  official  certificate,  210. 

certificate  of,  when  defective,  209. 

may  not  acknowledge  deed  to  self,  210. 


INDEX.  737 

[the  refekencbs  are  to  sections,] 
NOTES, 

by  examiner,  how  inserted,  98,  218. 
NOTE-TAKING, 

utility  of,  considered,  Ap. 
NOTICE, 

general  doctrines  of,  61. 

constructive,  effect  of,  62,  64,  65. 

not  effected  by  the  destruction  of  record,  60. 

constructive,  decree  rendered  upon,  462. 

actual,  effect  of,  63. 

lis  pendens,  how  shown  in  abstract,  74,  442. 

of  mechanic's  lien,  4.33,  609. 

of  sale,  under  execution,  how  shown,  477. 

afforded  by  chancery  records,  500. 

of  easement  or  servitude,  610. 

imparted  by  possession,  361,  581. 
NUNCUPATIVE  WILLS, 

or  oral  declarations  not  sufficient  to  transfer  real  estate,  375. 

OCCUPANCY, 

nature  and  extent  of  rights  acquired  by,  51. 
OFFICIAL  BONDS, 

constitute  a  lien  on  land,  when,  429. 
OFFICIAL  CEETIFICATES, 

may  be  shown  in  abstract,  how,  334. 
OFFICIAL  CONVEYANCES, 

defined  and   distinguished,   270. 

nature  and  effect  of,  271. 
OFFICIAL  AIDS  TO  SEAECH, 

what  are  and  how  consulted,   67. 
OPINIONS  OF  TITLE, 

general  remarks  concerning,  614. 

aids  in  rendering,  600,  601. 

how  framed,  613. 

clearness  of  expression  essential  in,  617. 

by  oral  communication,   618. 

erroneous,  liability  of  counsel  for,  619. 
ORAL  OPINIONS, 

undesirability  of,  618. 
ORDER, 

for  examination  of  title,  form  of,  Ap. 

of  publication  for  constructive  service,  505. 

of  confirmation,  in  judicial   sales,  486,  487. 
ORDINANCES, 

of  cities  and  towns,  when  necessary  to  be  shown,  3;!0. 

practical  example  of  abstract  of,  330.  ^ 

executive  approval  of,  331. 

operation  and  effect  of,  332. 
ORIGIN, 

of  abtracts,  speculations  upon,  3. 
Warvelle  Abs. — 47 


738  INDEX. 

[the  references  are  to  sections.] 
ORIGINAL  ENTRY, 

in  abstract  books,  bow  made,  78. 
suggestions  as  to  form  of,  78. 
long  form  method  of,  80. 

PARTIES, 

to  deeds  and  other  instruments,  17."^,  175. 

names  of,  how  displayed   in  abstract,  174,  17.1. 

defects  or  errors  respecting,  how  shown,  2(H. 

to  land  contracts,  relation  of,  i'.ll. 

to  legal  proceedings,  454,  457,  4GG,  4G8. 
PARTITION, 

effect  and  nature  of,  248. 

deed  of,  how  shown,  248. 

proceedings  for,  how  shown  in  abstract,  513. 
PARISH  RECORDS, 

are  competent  as  evidence,  73. 
PARTNERS, 

lands  held  by,  how  regarded,  249. 

conveyances  by,  249. 

judgments  against,  how  entered,  448. 
PARTY  WALLS, 

agreements  for,  effect  of,  337. 

how  shown  in  abstract,  337. 
PATENTS, 

defined  and  distinguished,   141. 

formal  requisites  of,  156. 

operation  and  effect  of,  153,   154. 

registration  of — general  land  office  record,  152. 

construction  of,  155. 

how  shown  in  abstract,  156. 

from  the  state,  effect  and  construction  of,  157. 

formal  requisites  of,  159. 
PATENT  SYSTEMS, 

for  compiling  abstracts,  observations  upon,  75. 
PERFORMANCE, 

of  contract  to  convey,  suflSciency  of  deed  and  title,  318. 
PERPETUITIES, 

attempts  to  create  same  void,  402. 
PERUSAL   OF   ABSTRACT, 

general  suggestions  for,  591. 

utility  of  notes  as  an  aid  to,  592. 

analytical  chains  used  in,  COl. 

use  of  sketch  maps,  602. 

preservation  of  memoranda  employed  in,  603. 

inquiries  in  pais  should  be  directed,  when,  608. 
PEDIGREE, 

to  prove  heirship,  example  of,  568  note, 
affidavit  of,  599. 
PLATS, 

of  public  surveys,  how  made,  161,  163,  164. 


INDEX.  739 


[the  references  are  to  sections,] 
PLATS  —  Continued. 

of  private  surveys  and  subdivisious,  166. 

formal  requisites  of,  167. 

how  shown  in  abstract,  167. 

effect  of  registration  of,  168. 

vacation  and  cancellation  of,  169. 

dedication  by,  effect  of,  170. 

by  assessor  in  tax  proceedings,  528. 
POSSESSION, 

notice  imputed  from,   361. 
POST  OBIT  CONVEYANCES, 

effect  of,  286. 
POWERS, 

definition  of,  21. 

obtain  to  what  extent  in  United  States,  21. 

of  disposition  to  holder  of  life  estate,  392. 
POWERS  OF  ATTORNEY, 

general  doctrine  of,  262,  263. 

how  shown  in  abstract,  262. 

revocation  of,  264. 
POWER  OF  SALE, 

distinguished  from  trust  of  sale,  283. 

in  trust  deeds,  how  exercised,  364. 

how  shown  in  abstract,  363. 
PRECATORY  TRUSTS, 

what  are  and  how  created,  401. 
PRE-EMPTION  ENTRIES, 

of  public  lands,  how  effected.  111. 

nature  of  title  conferred  by,  112. 

what  lands  subject  to.  111. 

conveyances  made  before,  effect  of,  113. 

abstract  of,  from  government  tract  book,  129. 

law  of,  repealed.  111. 
PREFERENCES, 

among  heirs,  rules  of,  549. 
PRESCRIPTION, 

is  founded  on  what  presumptions,  45,  572. 

effect  of  on  title,  45,  572. 

limited  by  what  fixed  periods,  45. 

and  adverse  possession,  572,  580. 
PRESERVATION, 

of  memoranda  of  counsel,  603. 
PRESUMPTIONS, 

of  heirship  and  legitimacy,  566. 
PRIMOGENITURE, 

right  of,  not  recognized  in  United  States,  549. 
PRINTED  COPIES, 

of  abstracts,  opinions  concerning,  612. 
PRIVATE  LAND  CLAIMS, 

what  are,  and  how  established,  126u. 


740  INDEX. 

[the  references  are  to  sections.] 
PROBATE  PKOCEEDINGS, 

in  respect  to  wills  and  testamentary  papers,  411,  414,  417, 

of  wills,  how  shown  in  abstract,  414. 

in  foreign  .iurisdiction,  how  shown,  416. 

operation  and  effect  of  decrees  in,  497,  564,  568. 

in  intestacy,  how  shown  in  abstract,  568. 

to  show  deatli  and  heirship,  564,  569. 
PROBATE  SALES, 

validity  and  effect  of,  492. 

nature  and  requisites  of,  493. 

how  shown  in  abstract,  494. 
PROCESS, 

office  and  formalities,  501,  502. 

service  of,  how  made,  503. 

proof  of  service  of,  how  shown,  504. 
PROHIBITED  CONVEYANCES, 

former  and  present  state  of  law  respecting,  233. 
PROOF, 

of  conveyance  by  official  certificate,  334. 

of  title  under  foreclosure  of  mortgage,  373. 

of  publication,  notice  of  sale,  478. 

of  title  under  judicial  and  execution  sales,  490. 

of  service  of  summons  in  legal  actions,  504. 

of  heirship,  how  effected,  34,  560. 

of  death,  35. 

of  birth  and  legitimacy,  565. 

of  adoption,  561. 

to  support  title  by  adverse  possession,  590. 
PUBLIC  LANDS, 

system  of  disposal  of,  106,  107,  108. 

public  sales  of,  107. 

private  entry  of,  108. 

subject  to  private,  what  are,  109,  110. 

preemption  entries  of.  111,  112. 

graduation   entries  of,   114. 

donation  •ntries  of,  115. 

entries  of,  under  homestead  laws,  116. 
under  desert  land  act,  118. 
under  tree  claim  act,  119. 

location  of  by  military  warrant,   120. 
by  U.  S.  land  scrip,  121. 

selections  of  under  sw;imp  land  grants,  122. 

disposal  of  in  aid  of  education,  123. 

and  internal  improvements,  124,  125. 

public  highways  upon,  126. 

private  claims  of,  126a. 

who  may  acquire  title  to,  127. 

inceptive  title  to,  how  shown  in  abstract,  128. 

town  site  entries  upon,  133. 

survey  and  division  of  under  U.  S.  land  laws,  161. 


INDEX.  741 

[THE  REFERENCES  ARE  TO  SECTIONS.] 

PUBLIC  GRANT, 

title  by,  what  is,  40. 

synopsis  of,  in  abstract,  125. 
PUBLIC  SURVEYS, 

how  executed  and  returned,  161. 
PUBLICATION, 

constructive  service  by,  effect  of,  503,  504. 

of  notice  of  sale  under  execution,  477,  478. 

of  summons,  affidavit  and  order  for,  505. 
PURCHASE, 

title  by,  defined,  37. 

money,  application  of,  282. 
PURCHASER, 

may  require  to  be  furnished  with  abstract,  when,  11. 

abstract  becomes  property  of,  when,  11. 

must  see  to  application  of  purchase  money,  when,  282. 

at  official  sale,  as  charged  with  notice  of  what  defects,  472. 

at  execution  sale,  takes  what  title,  473. 

trustee  can  not  become,  of  trust  estate,  291,  292. 

tax  payer  can  not  be,  at  tax  sale,  531. 

rights  of,  at  tax  sale,  532, 

QUALIFICATIONS, 

of  examiner  of  titles,  8. 
QUIA  TIMET, 

action  of,  effect  of  on  title,  512. 
QUIT-CLAIM  DEEDS, 

legal  import  of,  219. 

how  shown  in  abstract,  220. 

effect  of  covenants  in,  221. 

RAILROADS, 

grants  made  in  aid  of,  125. 
RECEIVER'S  RECEIPT, 

issued  at  time  of  entry,  108. 

does  not  constitute  evidence  of  title,  134. 

how  shown  in  abstract,  134. 
RECITALS, 

in  deeds,  how  shown  in  abstract,  187. 

effect  of  in  official  deeds,  272. 

in  sheriff's  deeds,  when  material,  274. 

in  tax  deeds,  537. 
RECORDS, 

consist  of  what,  58. 

depositories  of,  59. 

right  of  inspection  and  copy  of,  60. 

doctrine  of  notice  imparted  })y,   61. 

afford  constructive  notice,  when,  62. 

loss  or  destruction  of,  66. 

when  abstract  may  supply  the  place   of,  66. 

as  aids  in  real  estate  examinations,  67. 


742  INDEX. 

[TIIK   REKEKKNCES   ARE   TO    SECTlONS.l 

EECXDRDS  —  Continued. 

municipal,  when  shown   in  abstract,   72a. 

of  church  or  parish,  cfTect  of,  7.5. 

of  United  States  land  entries,  where  kej)t,  76. 

of  government  surveys,  effect  of,  77. 

of  general  land  oflSce,  how  made  and  kept,  152. 

of  mortgages,  impart  notice  of  what,  360. 

of  chancery  proceedings,  495,  498. 

corrected,  how  shown,  239. 
EECTANGULAR   SURVEYING, 

exposition  of  the  system  of,  164. 
EEDEMPTION, 

equity  of,  of  what  consisting,  344. 

bills  for,  how  shown,  515. 

from  tax  sale,  how  shown  in  abstract,  533. 
REFERENCE, 

instruments  shown  for,  97. 

to  original  instruments  and  private  memoranda,  100. 
REGISTRATION, 

American  doctrine  of,  62,  64. 

general  rules  regarding,  64,  65. 

effect  of  not  abrogated  by  destruction  of  record,  66. 

of  patents  from  United  States,  152. 

of  plats  and  subdivisions,  effect  of,  167,  168. 

of  deeds,  how  noted  in  abstract,  178. 

raises  of  presumption  of  delivery,  when,  197. 

of  mortgages,  effect  of,  360. 

of  death  certificate  when  evidence  of  fact,  563. 
EELATION, 

doctrine  of,  expounded,  44. 

of  parties  under  land  contracts,  311. 
RELEASE, 

as  a  substantive  mode  of  conveyance,  225. 

of  dower  by  wife,  23,  246. 

of  mortgage,  form  and  requisites  of,  368,  369. 

how  shown  in  abstract,  369. 

of  mortgage  by  trustee,  370. 

of  mortgage  on  margin  of  record,  371. 
RELICTION, 

defined  and  distinguished,  46. 

title  to  land  acquired  by,  46,  48. 
RELIEF  ACTS, 

how  shown  in  abstract,  140. 
EELINQUISHMENT, 

considered  as  method  of  passing  title,  52. 
EEMAINDEE, 

definition  of,  19. 

estate  in,  will  be  raised  when,  389,  396. 

contingent,  limitation  of  in  wills,  394,  396. 
EEMAINDER-MAN, 

adverse  possession  will  not  lie  against,  583. 


INDEX.  743 

[the  references  are  to  sections.] 


EEMOVAL, 

and  substitution  of  trustees,  268. 
REPEESENTATION, 

right  of,  among  heirs,  548. 
REPUGNANCJY, 

in  deeds,  by  what  rule  governed,  201,  209,  211. 

in  wills,  how  construed,  382, 
REQUISITIONS  FOR  TITLE, 

made  by  counsel  on  examination,  596. 

answers  to,  598. 

of  what  consisting,  598. 
RE-RECORDS, 

how  shown  in  abstract,  238. 

of  mortgage,  how  shown,  362. 
RESERVATION, 

distinguished  from  exception,  189. 

how  created  and  shown,  189. 
RESIDUARY   DEVISEE, 

when  charged  with  testator's  debts,  405. 
RESIGNATION, 

of  trustee  will  not  divest  the  trust,  269. 
RESOLUTIONS, 

of  municipal  boards,  should  be  shown  when,  333. 
RESTRAINT  OF  MARRIAGE, 

imposed  by  will,  validity  of,  395. 
RESTRICTIONS, 

inserted  in  conveyances,  effect   of,   190,  232. 
RESULTING  TRUSTS, 

general  doctrine  of,  237. 
REVERSIONERS, 

adverse  possession  will  not  run  against,  584. 
REVOCATION, 

of  power  of  attorney,  how  made,  264. 

of  trust,  266. 

of  wills,  409. 
RIPARIAN  TITLES, 

nature  and  incidents  of,  48. 

diversity  of  views  thereon,  48. 
ROOT  OF  TITLE, 

of  what  consisting,  136. 
RULES, 

for  division  of  land  acquired  by  accretion,  46. 

of  descent,  30,  547. 

for  land  measurement,  Ap. 

SALES, 

of  public  lands,  how  made,  107. 

in  pursuance  of  judgments  and  decrees,  473,  482. 

in  probate,  492,  493. 

for  non-payment  of  taxes,  529,  530. 


744  INDEX, 

[the  refehences  are  to  sections.] 
SATISFACTION, 

of  mortgage,  distinguished  from  release,  368. 
form  and  requisites  of,  369. 
how  shown  in  abstract,  369,  371. 
by  trustee,  370. 
by  marginal  discharge,   371. 

of  liens  and  charges  generally,  418. 

of  judgment,  how  shown,  459. 
SCALE, 

for  indexing  abstract  books,  87. 

of  land  measures  in  United  States,  Ap. 
SCHOOL  LANDS, 

method  of  donation  of,  123. 

grant  of,  how  shown  in  abstract,  131. 
SEALS, 

effect  of,  when  affixed  to  deeds,  194. 

of  notaries  should  attest  acknowledgment,  196. 

of  corporations,  258. 
SECTIONS, 

of  public  land,  how  surveyed  and  subdivided,  162,  163,  164. 

diagrams  of,  163. 

when  made  fractional,  163,  165. 
SERVICE, 

of  process,  how  made  and  shown,  503,  504. 

proof  of,  how  made,  504,  505. 
SHELLY 'S  CASE, 

rule  in,  effect  of,  182,  386. 
SHERIFF'S  DEED, 

operation  and  effect  of,  274. 

necessity  of  acknowledgment  of,  275. 

may  not  be  reformed  in  equity,  277, 

statutory  forms  of,  278. 

how  shown  in  abstract,  278. 

under  decree,  effect  of,  279. 

recitals  in,  when  material,  274. 
SIGNATURE, 

gives  efficacy  to  conveyances,  193, 

how  indicated  in  abstract,  193, 

in  execution  of  corporate  deeds,  256. 

to  deed  by  attorney  in  fact,  262. 
SOURCES  OF  TITLE, 

in  England  and  the  United  States,  17,  18. 

when  search  should  extend  to,  90,  129. 
SPECIFIC  PERFORMANCE, 

actions  for,  when  shown  in  abstract,  514. 
STAMPS, 

when  required  and  how  indicated,  199. 
STATE  LANDS, 

by  what  title  held,  and  how  disposed  of,  135. 

sales  of,  how  sliown  in  abstract,  135. 

formal  requisites  of  patents  for,  159, 


INDEX.  745 

[the  references  are  to  sections.] 
STATE  LANDS  —  Continued. 

effect  and  construction  of  patents  for,  157,  158. 

adverse  rights  will  not  run  against,  588. 
STATUTORY  FORMS, 

of  deeds  and  conveyances,  223. 

of  sheriff 's  deed,  278. 

of  mortgage,  effect  of,  351. 

of  tax  deed,  535,  537. 
SUBDIVISIONS, 

of  the  public  lands,  how  made,  161. 

of  section,  163. 

resubdivisions  of,  166. 

effect   of,  in  subsequent  conveyances,   166. 

formal  requisites  of,  167. 

how  shown  in  abstract,  167. 

vacation  and  cancellation  of,  169. 

by  assessors  for  taxation,  528. 
SUBSTITUTION, 

of  attorney  in  fact,  when  permitted,  263  note. 
SUCCESSION, 

line  of,  in  descents,  30,  547. 

rules  of,  according  to  civil  law,  31. 

through  adoption,  requires  what  to  be  shown,  33,  561. 
SUMMONS, 

how  shown  in  abstract,   501,   502. 

service  of,  how  made,  503. 

proof  of  service  of,  504. 

service  of  by  publication,  how  shown,  505. 
SURRENDER, 

considered  as  form  of  conveyance,  227. 

how  shown  in  abstract,  227. 
SURVIVORSHIP, 

in  joint  tenancies,  doctrine  of,  247. 

presumption  of,  in  ease  of  disaster,  562. 
SURVIVING   CONSORTS, 

are  not  heirs  of  deceased,  553. 
SWAMP  LAND  GRANTS, 

origin  and  history  of,  122. 

selection  of  public  land  under,  122. 
SYNOPSIS, 

of  instruments,  suggestions  for,  95. 

TACKING, 

of  adverse  claims,  doctrine  of,  580. 
TAX, 

index,  how  laid  out  and  kept,  83. 

definition  and  nature  of,  522. 

what  property  subject  to,  523.  p' 

lien  of,  attaches  when,  428,  524. 

sale  for  non-payment  of,  how  effected,  529. 

inheritance,  how  shown,  523.  / 


746  INDEX. 

[THE   REFERENCES   ARE   TO   SECTIONS.] 

TAXATION, 

subjects  of  the  burdens  of,  523. 

proceedings  incident  to,  527. 

of  abstract  books  and  indices,  12. 
TAX  ABSTRACT, 

caption  of,  93. 

should  show  what  matters,  540. 
TAX  DEEDS, 

validity  and  effect  of,  535,  536. 

possession  under,  how  acquired,  536. 

formal  requisites  of,  537. 

how  shown  in  abstract,  537. 

effect  of  as  evidence,  536,  538. 

how  aided  by  limitation  and  possession,  539. 

validity  of,  may  be  impeached  when,  539. 
TAX  INDEX, 

of  the  examiner,  how  compiled  and  used,  83. 
TAX  SALE, 

how  made  and  how  shown,  529,  531. 

tax  payer  as  purchaser  at,  acquires  no  title,  531. 

rights  of  purchasers  under,  532. 

redemption  from,  how  shown,  533. 

certificate  of  purchase  of,  534. 

abstracts  of,  how  compiled,  540. 
TAX  TITLE, 

nature  and  extent  of,  525,  538. 
TECHNICAL  ESTOPPEL, 

application  of  principles  of,  in  examinations  of  title,  42. 
TECHNICAL  PHRASES, 

in  deeds,  effect  of,  181,  182. 

in  wills,  how  construed,  385,  387. 
TENANCIES, 

for  years,  of  what  consisting,  24. 
TENANTS  IN  COMMON, 

nature  of  the  estate  held  by,  247. 

deeds  by,  to  effect  partition,  248. 

when  partners  will  hold  as,  249. 

statute  of  limitations  does  not  run  as  between,  585. 

may  assert  adverse  rights  when,  578. 
TESTAMENTARY  TITLES, 

character  and  effect,  374. 

formal  proof  of,  414,  416. 
TIDE  WATERS, 

common  law  of,  not  applicable  in  United  States,  48. 
TIMBER  CULTURE  ENTRIES, 

on  public  lands,  how  effected,  119. 

act  concerning,  repealed  when,  119. 
TITLE, 

distinguished  from  estate,  14. 

methods  of  acquisition  of,  14,  15,  37. 

how  classified,  16. 


INDEX,  747 

[the  references  are  to  sections.] 
TITLE  —  Continued. 

as  affected  by  the  doctrine  of  relation,  44. 

derived  from  what  sources,  17. 

nature  of  in  the  United  States,  18,  29. 

allodial,  nature  of  estate  held  under,  19. 

color  of,  what  constitutes,  26. 

evidences  of,  27. 

how  acquired  and  transferred,  28. 

by  purchase,  defined,  37. 

by  descent,  how  acquired,  28,  29,  542. 

by  deed,  28,  38. 

by  devise,  28,  39,  376. 

by  public  grant,  28,  40. 

through  estoppel,  41. 

acquired  through  accretion  or  reliction,  46. 

to  lands  on  navigable  waters,  incidents  of,  46,  48. 

derived  through  eminent  domain,  53. 

by  dedication,  49. 

by  escheat,  55. 

derived  through  confiscation,  56. 

by  prescription  and  limitation,  45. 

preliminary  stages  of,  104. 

inceptive  measures  under  U.  S.  land  laws,  105. 

nature  of,  conferred  by  private  entry,  108,  109. 

conferred  by  general  laws,  111,  114,  115,  116,  118,  119. 

to  public  lands,  who  may  acquire,  127. 

acquired  by  sheriff's  deed,  274,  278. 

of  assignee  in  insolvency,  297,  307. 

of  purchaser  at  execution  sale,  473. 

under  execution  sale,  vests  when,  474. 

under  judicial  sale,  483. 

purchaser  may  be  compelled  to  take,  when,  485. 

proof  .of,  under  execution  and  judicial  sales,  490. 

derived  from  tax  sale,  525,  526. 

acquired  by  adverse  possession,  572,  590. 

opinions  of,  how  made,  613. 

analysis  of,  utility  in  examination,  600. 

validity  of,  in  framing  opinions,  604. 

flaws  in,  how  detected  and  obviated,  606. 

clouds  upon,  effect  of,  607. 
TOWNSHIP, 

how  surveyed  and  subdivided,  161. 

diagram  of,  161. 
TOWN  SITE  ENTEIES, 

how  made  and  for  what  purpose,  133. 

how  shown  in  abstract,  133. 
TRACT  BOOK, 

of  the  government  land  office,  76. 

of  the  examiner,  how  compiled,  81. 
TRUSTS, 

general  doctrine  concerning,  20. 


748  INDEX. 

TRUSTS  —  Continued. 

resulting,  generally  considered,  237. 

for  what  ]iurposcs  permitted,  20. 

words  which  create,  293. 

declaration  of,  how  made  and  shown,  267. 

created  by  will,  399,  401. 

precatory,  what  are  and  how  raised,  401. 
TRUSTEES, 

how  created,  265,  281,  399. 

declarations  by,  267. 

removal  or  substitution  of,  268. 

resignation  or  refusal  to  act  of,  269. 

transfers  of  legal  estate  by,  282. 

purchaser  must  see  to  application  of  purchase  money  by,  when,  282,  283. 

deeds  and  conveyances  by,  281,  284. 

may  not  purchase  trust  estate,  291,  292. 

deeds  by  under  power  of  sale,  283. 

releases  by,  of  mortgaged  property,  370. 

in  testamentary  conveyances,  282,  399. 

may  not  delegate  trust  powers,  281. 
TRUST  DEEDS, 

character  and  effect  of,  363. 

power  of  sale  in,  how  shown,  364. 

in  nature  of  mortgage,  363. 

how  shown  in  abstract,  363. 
TRUST  OF  SALE, 

distinguished  from  power  of  sale,  282. 

UNITED  STATES, 

nature  of  title  to  land  in,  18. 

estates  in  land  recognized  by,  19. 

being  the  sovereign  power,  not  affected  by  estoppel,  43. 
or  limitation,  except  when,  43,  45. 

system  of  disposal  of  lands  of,  106. 
UNRECORDED  EVIDENCE, 

abstract  does  not  contemplate,  341. 
USES  AND  TRUSTS, 

nature  of  in  United  States,  20. 

defined  and  distinguished,  20. 
USER, 

and  possession  will  support  claim  of  title  when,  572,  578. 

VACATION, 

of  plats  and  subdivision,  169. 

how  shoNvn  in  abstract,  169. 

of  streets  and  public  roads,  330. 
VENDOR, 

not  required  to  furnish  abstract  in  absence  of  contract,  11. 
VENDOR'S  LIENS, 

must  be  disclosed  to  bind  third  parties,  423. 
VERDICTS, 

should  be  noticed,  when,  508. 


INDEX.  749 


[the  references  are  to  sections.] 
VOLUNTARY  ASSIGNMENT, 

character  and  operation  of,  293. 

validity  of,  295. 

how  affected  by  bankrupt  law,  294. 

formal  requisites  of,  296. 

construction  and  effect  of,  298. 

conflict  of  laws  relating  to,  299. 
VOWEL  INDEX, 

object  and  method  of  use,  86. 

WARRANTY, 

covenant  of,  extends  to  what,  191,  216. 

of  title,  in  quit-claim  deeds,  effect  of,  221. 

against  acts  of  grantor  only,  effect  of,  222. 

how  construed  in  statutory  forms,  223. 

implied  from  words  of  grant,  191,  216. 
WARRANTY  DEEDS, 

legal  import  of,  216. 

how  shown  in  abstract,  217. 

with  limited  covenant,  222. 
WIFE, 

conveyances  to,  as  marriage  settlements,  240. 

conveyances  to,  and  to  husband,  effect  of,  241. 

conveyances  to,  from  husband,  242. 

conveyances  by,  to  stranger,  243. 

release  of  dower  by,  23,  246. 

deed  of,  how  acknowledged,  245. 
WILLS, 

agreements  for  conveyances  by,  321. 

general  doctrines  relating  to,  374. 

construction  and  operation  of,  378,  381. 

repugnant  provisions,  how  treated,  382. 

when  real  estate  will  pass  under,  388. 

interpretation  of  words  and  phrases,  387. 

limitations  and  remainders  in,  389. 

contingent  remainders  created  by,  396. 

language  required  to  raise  trusts  in,  399. 

precatory  trusts  in,  how  expressed,  401. 

re«iduary  clause  in,  effeot  of,  407. 

codicils  to,  effect  of,  408. 

formal  requisites  of,  410. 

abstract  of,  how  made,  411. 

probate  of,  effect  of,  414. 

foreign  probate  of,  416. 

construction  of  in  equity,  531. 

exemplifications  of,  how  shown,  416. 
WITNESSES, 

to  deeds,  attestation  of,  how  shown,   195. 
WORDS, 

importing  technical  character,  387. 

which  pass  real  estate  in  wills,  388. 


750  INDEX. 

[the  references  are  to  sections.] 

WORDS  OF  GRANT, 

wliat  are,  in  deeds,  181. 
and  wills,  384. 
WORDS  OF  PURCHASE  AND  LIMITATION, 

of  what  consisting,  182. 

in  leases,  what  are,  323. 

in  wills,  general  rules  of,  385. 

create  remainders,  when,  396,  397. 
WRIT, 

of  attachment,  how  levied,  445. 

of  execution,  levy  and  return  of,  475,  470. 


INDEX  TO  FORMS 


[the  references  are  to  sections.] 
ABSTEACT, 

formal  captions  for,  93. 

general  examination,  93. 

special  examination,   93. 

examination  of  tax  title,  93. 

formal  conclusion  of,  103. 

notes  where  tax  sales  are  not  shown,  103. 

verification  of  copies  of,  103. 

general  arrangement  of,  94. 
ABSTEACT  INDICES, 

original  entry,  78. 

document  number  index,  79. 

tract  index,  81. 

irregular  index,  82. 

judgment  index,  84. 

tax  index,  83. 

scale  for  indexing,  87. 
ACKNOWLEDGMENT, 

notes  of,  196,  210. 

of  corporation  deeds,  256. 
ADVEESE  TITLE, 

notes  appended  to  adverse  deeds,  573. 
AFFIDAVIT, 

general  form  of,  329. 

of  domestic  condition,  329,  339. 

of  pedigree,  599.  > 

of  matter  in  pais,  339. 

of  publication,  478. 
AGEEEMENT, 

for  conveyance  by  deed,  316,  320. ' 

for  party  wall,  337. 
ANALYSIS  OF  TITLE, 

to  show  ownership,  600. 

to  trace  course,  601. 

English  method,  Ap. 
ASSIGNMENT, 

by  register  in  bankruptcy,  307. 

of  mortgage,  367. 
AEEANGEMENT, 

of  abstract,  chain  of  title,  94. 
ASSESSMENTS, 

note  of  levy  of,  541. 

751 


752  INDEX  TO  FORMS. 

[THE   REi'ERENCES   ARE   TO   SECTIONS.] 

ATTACHMENT, 

proceedings  in,  445. 
certificate  of,  445. 

BANKRUPTCY, 

petition,  306. 

assignment,  307. 

assignee's  deed,  308. 

discharge,  309. 
BOND, 

for  deed,  320. 

CERTIFICATE, 

of  examination,  103. 

of  general  land  office  record,  156. 

of  sale  by  land  commissioners,  135. 

of  public  officials,  334. 

of  conformity,  210. 

of  levy  (attachment),  445. 

of  sale   (execution),  488. 

of  sale   (judicial),  488. 

official,  334. 

of  proof  of  conveyance,  334. 

of  death,  563. 

of  proof  of  will,  413. 
CHANCERY  RECORDS, 

general  form,  509. 

in  special  cases,  513. 

in  partition  suits,  513. 

in  condemnation  suits,  520. 

notes  of,  divorce,  518. 
CONGRESSIONAL  GRANTS, 

act  of  Congress,  reinstatement,  140. 

by  way  of  confirmation,  140. 
CORPORATE   CONVEYANCES, 

corporation  deed,  255. 

special  appended  matter,  256. 

showing  power  to  execute,  256. 

general  form  of  execution,  258. 

DECLARATION, 

of  vacation  of  plat,   169. 

of  trust,  267. 
DECREE, 

common  form,  465. 

where  findings  are  inserted,  465. 
DEEDS, 

warranty,  217. 

warranty,  by  attorney,  262. 

warranty,  special,  222. 

quit  claim,  special,  220. 


INDEX  TO  FORMS.  753 


[THE  EEFEEENCES   ARE   TO   SECTIONS.] 

DEEDS  —  Continued. 

confirmation,  226. 

in  futuro,  229. 

surrender,  common  law,  227. 

of  special  estates,  231. 

creating  remainders,  231. 

subject  to  incumbrance,  235. 

partition,  248. 

re-record  of,  2S8. 

duplicate,  238. 

subject  to  mortgage,  235. 

by  corporation,  255. 

by  attorney  in  fact,  262. 

by  sheriff,  278. 

by  master,  280. 

by  trustee,  284. 

by  administrator,  288. 

by  register  in  bankruptcy,  307. 

by  assignee  in  bankruptcy,  308. 

by  county  clerk  (tax),  537. 

of  trust,  363. 

of  relinquishment,  246. 
DISCHAEGE, 

in  bankruptcy,  309. 

on  margin  of  record,  371. 

of  judgments,  459. 
DISMISSALS, 

of  action,  454. 

as  to  certain  defendants,  454. 

EXCEPTION, 

from  a  grant  of  land,  189. 
EXECUTION, 

of  corporation  deeds,  256,  258. 
EXECUTION  SALE, 

when  followed  by  deed,  472. 

INDEX, 

of  original  entries,  78. 

of  document  number  record,  79. 

of  land  tracts,  81. 

of  tax  sales,  83. 

of  judgments,  84. 
INITIAL  STATEMENTS, 

entry  at  government  land  oflSce,  129. 

donation  by  the  United  States,  130. 

cession  of  section  sixteen,  131. 

cession  of  lieu  lands,  131. 

receiver's  receipt,  134. 

commissioner's  receipt   (State  lands),  135. 
Warvelle  Abs. — 48 


754  INDEX  TO  FORMS. 

[THE  KEFEBENCES   ARE  TO   SECTIONS.] 

JUDGMENT, 

common  form,  454. 

note  of  satisfaction  of,  459. 

note  where  no  execution  has  been  issued,  454. 

against  plaintiff,  454. 

LEASE, 

for  years,  323. 

re-record  of,  283. 
LETTER, 

suggestion  for  showing,  338. 
LIS  PENDENS, 

notice  of,  442. 

MASTERS, 

certificate  of  sale,  488. 

deed,  280. 
MORTGAGES, 

that  have  been  released,  350. 

common  form,  when  still  subsisting,  350. 

conveyances  subject  to,  235. 

to  secure  purchase  money,  357. 

re-record  of,  362. 

note,  when  apparently  adverse,  352. 

trust  deed,  in  nature  of,  363. 

power  of  sale  in,  363. 

release  of,  369. 

satisfaction  of,  369. 

marginal  discharge  of,  371. 

assignment  of,  367. 

note,  when  released  by  successor  in  trust,  370. 

NEW  ENGLAND  ABSTRACTS, 

sample,  Ap. 
NOTES, 

of  reference  to  original  documents,  100,  178,  201,  218. 
of  non-registration  of  instruments  shown,  140. 
of  reference  to  other  records,  263,  370,  371. 
of  certificate  of  magistracy,  210. 
of  covenant  of  non-claim,  222. 
of  chancery  records,  509. 
of  adverse  conveyances,  573. 
of  probate  of  will,  413,  417. 
of  correction  of  record,  239. 
of  power  of  sale  in  other  instrument,  284. 
of  reference  to  municipal  records,  330. 
of  non-payment  of  taxes,  524. 
of  payment  of  taxes,  524. 
NOTICE, 

lis  pendens,  442. 


INDEX  TO  FORMS.  755 


[THE  REFERENCES   ARE   TO   SECTIONS.] 

NOTICE  —  Continued. 
of  sale,  477. 
proof  of  publication  of,  478. 

OFFICIAL  CONVEYANCES, 

sheriff's  deed,  278. 

master's  deed,  280. 

trustee's  deed,  284. 

administrator's  deed,  288. 

assignee's  deed,  308. 

county  clerk's  deed  (tax),  537. 
ORDER, 

for  examination  of  title,  Ap. 
ORDINANCE, 

of  municipality,  330. 
OPINION  OF  TITLE, 

based  on  personal  search,  614. 

based  on  the  abstract,  616. 

PATENTS, 

from  the  United  States,  156. 
PEDIGREE, 

English  form  of,  568. 

affidavits  of,  599. 
POWER, 

of  attorney,  263. 

revocation  of,  264. 

of  sale,  363. 
PROBATE, 

of  wills,  413,  417. 

of  estate,  569. 

sales,  494. 
PROCEEDINGS, 

in  bankruptcy,  306. 

in  probate  (will),  413,  417. 

in  probate  (sale),  494. 

in  probate   (heirship),  569. 

in  chancery,  509. 

in  partition,  513. 

in  condemnation  suits,  520. 

for  divorce,  518. 

RECEIPTS, 

of  Receiver  U.  S.  Land  Office,  134. 

of  Commissioner  State  Lands,  135. 
RECORD, 

note  of  correction  of,  239. 
RELEASE, 

of  dower,  246. 

of  mortgage,  369. 

on  margin,  371. 


766  INDEX  TO  FORMS. 

[the  references  are  to  sections.] 
RE-RECORD, 

of  deeds,  283. 

of  lease,  283. 

of  mortgage,  362. 
RESERVATION, 

from  a  grant  of  land,  189. 
RESTRICTION, 

upon  use  of  land,  190. 
REVOCATION, 

of  power  of  attorney,  264. 

SALE, 

notice  of,  477, 

certificates  of,  488. 

for  taxes,  529,  530. 

in  bankruptcy,  307. 
SALES, 

in  probate,  494. 

in  chancery,  488. 

under  execution,  488. 
SATISFACTION, 

of  mortgage,  369. 

of  mortgage  on  margin  of  record,  371. 

of  mortgage  by  executor,  371. 
SCALE, 

for  indexing  books,  87. 
SHERIFF 'S, 

certificate  of  sale,  488. 

deed,  278. 
STAMPS, 

method  of  showing,  199. 
SUBDIVISION, 

minutes  of  plat,  167. 

approval  by  civic  authorities,  167. 

vacation  of,  169. 
SURRENDER, 

of  life  estate,  227. 

TAX  SALES, 

general  forms,  529. 

forfeiture,  530. 

deeds  resulting  from,  537. 
TRUST, 

declaration  of,  267. 

deed  in,  363. 

VACATION, 

of  plat,  169. 

of  street,  330. 
VERIFICATION, 

of  copy  of  abstract,  012. 


INDEX  TO  FORMS.  757 


WILLS, 

common  form,  413. 
exemplified  copy  of,  416. 
with  special  provisos,  413,  417. 
proof  of,  in  probate,  413,  416. 
probate  of,  413,  417. 
note  of  proof  of  death,  413. 


UC  SOUTHERN  REGIONAL  LIBRARY  FACILITY 


AA    000  851451     5 


